Court name
High Court Main Division
Case number
APPEAL 133 of 2014
Case name
Van Rooi v Town Council of Rehoboth First and Others
Media neutral citation
[2014] NAHCMD 317
Judge
Parker AJ










REPUBLIC OF
NAMIBIA




HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: A 133/2014





DATE:
30 OCTOBER 2014





In the matter
between:





VERONIQUE FERIAL
VAN
ROOI.......................................................APPLICANT





And





TOWN COUNCIL OF
REHOBOTH FIRST........................................RESPONDENT





REGISTRAR OF
DEEDS...................................................SECOND
RESPONDENT





ALFRIEDA ESRA
DIERGAARDT........................................THIRD
RESPONDENT





Neutral citation:
Van Rooi v Town Council of Rehoboth (A 133/2014) [2014] NAHCMD 317
(30 October 2014)





Coram: PARKER AJ





Heard: 22
September 2014





Delivered: 30
October 2014





Flynote: Sale –
Land – Contract – Cancellation – Purchaser in
breach – Court held that where the contract lays down a
procedure for cancellation that procedure must be followed, otherwise
the purported cancellation will be ineffective – In instant
case court found that the seller did not follow the procedure for
cancellation upon alleged breach of a material term of the agreement
– Consequently court concluded that the purported cancellation
was ineffective.





Summary: Sale –
Land – Contract – Cancellation – Purchaser in
breach – Seller purported to cancel sale agreement on the basis
that purchaser has breached material terms of the agreement,
including non-payment of the purchase price on due date – In
terms of the agreement the seller was to give written notice to
remedy the breach within 14 days, failing which seller was entitled
to cancel the sale or claim immediate payment of the purchase price
and fulfillment of all terms and conditions of the agreement –
Court found that the seller had not followed the procedure for
cancellation under the agreement when she purported to cancel the
agreement – Consequently, court found the purported
cancellation to be ineffective – Court granted order requiring
the seller to follow the proper procedure if she desired to cancel
agreement.








ORDER








(a) The applicant’s
non-compliance with the rules of court is condoned and the
application is heard on urgent basis.





(b) The third
respondent may, if she so desires, not later than 13 November 2014
pursue her remedy under clause 8 of the Agreement.





(c) Subject to para
(b), the respondents are interdicted from carrying out on any date
prior to 28 November 2014 any act for the purpose of transferring Erf
No. B21 Rehoboth, Registration Division “M” Hardap
Region, into the name of any person, including the applicant.





(d) If the applicant
fails or refuses to remedy any breach communicated to her in terms of
a written notice contemplated in para (b), read with clause 8 of the
sale agreement, the respondents are discharged from the interdict set
out in para (c).





(e) Each party is to
pay his, her or its own costs of suit.








JUDGMENT








PARKER AJ:





[1] This application
started its life as an urgent application that was to be heard at
09h00 on 13 June 2014. The application was not heard; for on that
date the court ordered papers to be filed by the respondents and the
applicant and the filing of heads of argument by both counsel. A new
set down hearing date of 10 July 2014 was, therefore, ordered.
Hearing of the application did not proceed on that date either. A new
set down hearing date of 22 September 2014 was ordered and was
utilized. I have set out this brief history of the matter to make the
point that the relief sought in para 1 of the notice of motion was no
longer relevant, and, therefore, does not warrant any treatment.





[2] This matter
revolves around a sale of immoveable property, being Erf B21,
Rehoboth, Registration Division “M” Hardap Region (‘the
property’), entered into between the third respondent (the
seller) on the one hand and the applicant and Mitta Elizabeth
Witbooi, being apparently the applicant’s mother, on the other.
The applicant brought the application by notice of motion in which
she seeks an order in terms appearing in the notice of motion. The
first respondent and the third respondent have moved to reject the
application. The second respondent has not filed any papers.





[3] In virtue of the
talisman on which the applicant hangs the merits of this application,
it is my view that no purpose would be served to rehearse in this
judgment averments that are traded between the applicant and the
respondents as to why in the third respondent’s view she was
entitled to cancel the agreement and why in the applicant’s
view the third respondent violated the terms of the agreement when
she purported to cancel the agreement. The talismanic averment of the
applicant is based on the interpretation and application of clause 8
of the agreement, entitled ‘BREACH’. Clause 8 in material
parts provides:





‘BREACH


In the event of the
PURCHASER falling to fulfil on due date any of material terms and
conditions of this Agreement and remains in default after 14
(fourteen) days’ written notice to remedy such breach, the
SELLER or his Agent shall have the right either:





8.1. to cancel the
sale by registered letter addressed to the PURCHASER, in which event
the PURCHASER shall forfeit all monies paid to the SELLER or his
Agent in terms hereof, without prejudice to the SELLER’S other
legal rights and remedies and the right to claim damages; OR





8.2. to claim
immediate payment of the whole of the purchase price and the
fulfilment of all terms and conditions hereof.’





[4] On the
interpretation of the chapeu and clauses 8.1 and 8.2 of the agreement
which are clear and unambiguous, I conclude that the third
respondent’s entitlement to the remedy in clause 8.1 or the
remedy in 8.2 is not absolute; the third respondent must – she
has no discretion in the matter – serve a written 14 days’
notice on the applicant, calling on the applicant to remedy any
breach. It is only after the applicant has failed or refused to act
in terms of the notice that the third respondent’s entitlement
to the remedy in clause 8.1 or 8.2 enures. In this regard, it must be
remembered that the agreement ‘is conclusive as to the terms of
the transaction’ respecting the sale of the property (See L H
Hoffmann and D T Zeffert, The South African Law of Evidence, 4 ed
(1988) p 291.)





[5] I respectfully
reject the abortive attempt by Ms Husselmann, counsel for the first
and third respondents, to argue that the third respondent gave the
requisite notice in terms of clause 8. The third respondent did not.
What is contained in the papers placed before the court is a letter
(dated 17 April 2014) written by the third respondent to applicant
and her husband and the applicant’s legal representatives. The
letter reads in material parts as follows:





‘RE: NOTICE TO
CANCEL TRANSACTION





Dear Sir/Madam





Herewith notice of
cancellation of the transaction between Mr and Mrs Van Rooi and
myself in which Mr and Mrs Van Rooi offered to purchase Erf B21,
Rehoboth (the property).’





[6] Doubtless, the
letter does not even come close to complying with clause 8 of the
agreement. On this point I accept the submission by Mr Rukoro,
counsel for the applicant. ‘If a contract lays down a procedure
for cancellation’, wrote R H Christie in his work The Law of
Contract in South Africa, 6th ed, p 562, ‘that procedure must
be followed or a purported cancellation will be ineffective’.
In the instant case I find that the purported cancellation is
ineffective, even if in the third respondent’s view the
applicant has failed to fulfil on due date any material term and
condition of the agreement.





[7] Ms Husselmann
submitted that up to date the applicant has not shown any proof that
she has paid the purchase price. That may be so; but, as I say, the
procedure for cancellation provided in the agreement must be
followed. For other reasons which I shall indicate in due course this
unchallenged submission is relevant, though not relevant as respects
the third respondent’s failure to comply with the giving of
notice in terms of clause 8.





[8] In virtue of the
conclusion that the cancellation by the third respondent of the sale
agreement is ineffective and further that payment of the purchase
price has not been paid by the applicant within the time limit
stipulated in clause 2 of the agreement, I need not treat extensively
the position of the first respondent. I shall only say this. As an
administrative body responsible for carrying out public duties
relevant to the present matter, the first respondent has both the
discretionary power to act or not and an obligation to perform its
ministerium that is, its statutorily prescribed task under the Local
Authorities Act 23 of 1992, read with the Registration of Deeds in
Rehoboth Act 93 of 1976 which is the issuing of a clearance
certificate. Thus, it is only when the first respondent is satisfied
that the applicant has satisfied the statutory requirements for the
issuance of a clearance certificate that the first respondent must
perform its prescribed task, ie the issuance of the clearance
certificate. It follows that the first respondent exercises power,
which is discretionary, and, in addition, it is obliged to perform
its prescribed task, also under those Acts, ie the first respondent’s
ministerium. These are the public duties of the first respondent in
terms of those Acts in relation to the issuing of clearance
certificates within its area. See Nguvauva v Minister of Regional and
Local Government and Housing (A 254/2010) [2014] NAHCMD 290 (2
October 2014).





[9] From the
aforegoing treatment of the public duties of the first respondent, I
hold that this court is not entitled to direct (as the applicant
prays in para 2 of the relief sought in the notice of motion) the
first respondent, an administrative body, to exercise its
discretionary power in any particular manner. See Trustco Insurance v
Deed Registries Regulation Board 2010 (2) NR 565 (HC). After the
first respondent has considered an application to issue a clearance
certificate, the first respondent has a duty to act or not, ie to
issue or not to issue the clearance certificate, and give reasons for
its decision. I need not say that, indeed, it is the administrative
body, and not the court, which is given the power by the Acts to
issue a clearance certificate in its local authority council area. As
I have indicated infra, the first respondent has not exercised its
power or performed its ministerium.





[10] In this regard,
the first respondent has the power to act or not, that is, issue or
refuse to issue, the clearance certificate and, if it refused to
issue the certificate, give reasons for its inaction and inform the
applicant or her legal representatives accordingly. That would be in
conformity with the requirements of art 18 of the Namibian
Constitution. The first respondent has not done all that. Indeed, as
matters stand, the court has nothing in writing from the first
respondent placed before it, indicating that the first respondent has
taken a decision in which it has refused to issue the clearance
certificate and the reasons for its inaction, albeit a representative
of the first respondent did file an answering affidavit.





[11] I understand Ms
Husselmann’s argument that the first respondent has filed
papers opposing the application because certain allegations against
the first respondent have been made in the applicant’s papers.
Besides, in my view, it is proper that the first respondent has filed
papers because an order is sought against it, except that, as I have
said, the first respondent’s papers are bereft of an essential
element, namely, whether it has issued or refused to issue the
clearance certificate, and if it has refused to issue the
certificate, its reasons for so refusing.





[12] In paras 2 and
3 of the notice of motion the applicant seeks final orders and yet
the respondents, were given barely one day in which to deliver
answering papers, and, in all, shy of two days in which to file
papers and prepare for the hearing. It was, thus, due to the
applicant’s unwarranted conduct that the matter could not be
heard on 13 June 2014 as I found it necessary that the respondents
filed papers. This is an applicant who rushes to court at breakneck
speed, dragging the respondents with her, and yet she had to the date
of filing papers not fulfilled the terms of clause 2 of the agreement
which is a material term of the agreement. That being the case it
would be unreasonable and inequitable if the court were to make the
order prayed for in paras 2 and 3 of the notice of motion without
more or without any qualification.





[13] Furthermore,
taking into account the order I have made infra, the applicant has
not succeeded substantially, considering the relief she seeks. For
all these reasons, in the exercise of my discretion, I hold that this
is a proper case where it is fair and reasonable that the court does
not grant costs against any party.





[14] In the result,
I make the following order:





(a) The applicant’s
non-compliance with the rules of court is condoned and the
application is heard on urgent basis.





(b) The third
respondent may, if she so desires, not later than 13 November 2014
pursue her remedy under clause 8 of the Agreement.





(c) Subject to para
(b), the respondents are interdicted from carrying out on any date
prior to 28 November 2014 any act for the purpose of transferring Erf
No. B21 Rehoboth, Registration Division “M” Hardap
Region, into the name of any person, including the applicant.





(d) If the applicant
fails or refuses to remedy any breach communicated to her in terms of
a written notice contemplated in para (b), read with clause 8 of the
sale agreement, the respondents are discharged from the interdict set
out in para (c).





(e) Each party is to
pay his, her or its own costs of suit.





C Parker





Acting Judge



APPEARANCES








APPLICANT : S
Rukoro





Instructed by Dr
Weder, Kauta & Hoveka Inc., Windhoek





FIRST AND THIRD





RESPONDENTS: G M
Husselmann





Of Van Wyk,
Stanley & Partners, Rehoboth





c/o Sharon Blaauw
Attorneys, Windhoek