Court name
High Court Main Division
Case name
Intamba v Tjapaka
Media neutral citation
[2015] NAHCMD 218
Judge
Ueitele J


















SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance with the law
and
SAFLII
Policy






REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case
no: A 57/2015


DATE:
16 SEPTEMBER 2015


In
the matter between:


JOHANNA
INTAMBA.......................................................................................................APPLICANT





And





UERIHEKA
TJAPAKA..........................................................................................1ST
RESPONDENT


SAMEUELINE
TJAPAKA....................................................................................2ND
RESPONDENT


JOEL
HAFENI
SHAFASHIKE.............................................................................3RD
RESPONDENT


EMILIA
NANDJILA
SHAFASHIKE...................................................................4TH
RESPONDENT


THE
REGISTRAR OF
DEEDS.............................................................................5TH
RESPONDENT


Neutral
citation: Intamba v Tjapaka (A57-2015) [2015] NAHCMD 218 (16
September 2015)


Coram:
UEITELE, J


Heard:
08 September 2015


Delivered:
16 September 2015


Flynote:
Statute - Sale of the Agricultural (Commercial
Land) – requirements of s 7 of the Married Persons Equality
Act, 1996 (Act No.1 of 1996).


Practice
Purpose of affidavits in motion proceedings -
affidavits serve to both place evidence before the court and to
define the issues between the parties. - Respondents claim that the
applicant had not acquired her late husband’s consent in
writing to purchase the farm - Insufficient facts averred to
establish such lack of consent.


Summary:
During 2010 the parties entered into a written sales agreement of
Farm Guiganab-Ost, No. 273, Registration Division “B”,
situate in the District of Grootfontein, Otjozondjupa Region,
measuring 3006,6982. In terms of the sales agreement the applicant
had to pay a deposit in the amount of N$ 500 000 (Five Hundred
Thousand Namibia Dollars) and certain other payments owed by the
first and second respondents to the Agricultural Bank of Namibia.
Transfer of the farm would take place after October 2014 on payment
of the balance of the purchase price.


On
06 June 2014, the 1st and 2nd respondents’
legal practitioners addressed a letter to the applicant stating that
the purchase price agreed upon was unrealistic and that the applicant
must adjust the price to market related price.  On 11 July 2014
the 1st and 2nd respondents’ legal
practitioners addressed another letter to the applicant stating that
because the purchaser was married in community of property to the
late Andrew Anyanya Intamba, she legally could not have entered into
a sales agreement involving the immovable property in question
without the authorization of her late husband and that that agreement
is thus void.


The
parties exchanged correspondences, in her final correspondence to the
first and second respondents, the applicant sought an undertaking
from the first and second respondents that they will not proceed the
execution of the Deed of Sale they (i.e. first and second
respondents) concluded with the third and fourth respondents. When
the first and second respondent refuse to give the undertaking sought
by the applicant, the latter approach this court in essence seeking
specific performance. The first and second respondents opposed the
application in their opposition they simply raised some points in
limine.


Held
that in application proceedings the affidavits take the place not
only of the pleadings in action proceedings but also of the essential
evidence which would be led at a trial.


Held
further
that, by electing not to
answer the allegations made by the applicant in her founding
affidavit in his answering affidavit, it follows that the facts
raised by the applicant in her founding affidavit were not placed in
dispute and must be accepted as correct.


Held
further
that the first and second respondents
in their affidavit, had to furnish facts in the form of evidence of
the nature of the applicant’s and the first respondent’s
lack of consents from their spouses to conclude the sales agreement.
The allegation, that the applicant did not have her spouse’s
consent to enter into the sales agreement, in the answering affidavit
is a conclusion of law, it is at best for the first respondent an
inference, a "secondary fact", with the primary facts on
which it depends omitted.


Held
further
that the absence of the signatures of the late Andrew
Anyanya Intamba (the husband of the purchaser) and
Samuelina Tjapaka (the wife of the seller) is not evidence of absence
consent from those parties
The first and second respondents
have failed to establish the contravention (if
any) either by the applicant or by the first respondent of s7 of the
Married Persons Equality Act, 1996 or of the
lack of
compliance with the provision of s1 of the Formalities in respect of
Contracts of Sale of Land Act, Act No. 71 of 1969.


ORDER


1            
The first and second respondents’ point in limine is
dismissed;





2            
The Memorandum of Agreement of Sale of the Immovable Property
described as :





CERTAIN:                
Farm Guiganab-Ost, No. 273,





SITUATED:
            
Registration Division “B”


Otjozondjupa
Region,


 


MEASURING
          
3006, 6982 (Three Thousand and Six comma Six Nine Eight Two) Hectares


HELD
                       
By Deed of Transfer No. [T 5………]


entered
into by and between the first respondent and the applicant on 6th
December 2010 is declared valid and binding;


3            
The first and second respondents must apply for and obtain a
Certificate of Waiver from the Minister of Lands and Resettlement
through the Permanent Secretary as contemplated in section 17(4) of
the Agricultural (Commercial) Land Reform Act, 1995 and Clause 20.2
of the sales agreement by no later than fourteen days (i.e. not later
than the 01st of October 2015) from the date of this of
this order.


 


4            
If the first and second respondents fail or refuse to neglect to
comply with paragraph 3 of this order then and in that event the
Deputy Sheriff, for the District of Windhoek is ordered and
authorized to apply for and obtain the Certificate of Waiver from the
Minister of Lands and Resettlement through the Permanent Secretary as
contemplated in section 17(4) of the Agricultural (Commercial) Land
Reform Act, 1995 and Clause 20.2 of the sales agreement;



 


5            
The first and second respondents are interdicted and restrained from
taking any steps whatsoever pursuant to the purported agreement which
the first and second respondents entered into on or about 24th
July 2014 regarding the sale of the Farm by the first and second
respondents to the third and fourth respondents.



 


6            
If the first, second, third and fourth respondents have registered
the Farm in the name of the third and fourth respondents prior to the
hearing of this application pursuant to any purported agreement
entered into by the aforesaid respondents, declaring that such
registration is declared void and of no legal force and effect.



 


7         
The first and second respondents are directed to take such steps as
are necessary to pass transfer to the applicant against payment of
such transfer costs as contemplated in clause 4 of the sales
agreement by the applicant and any outstanding balance on the
purchase price as contemplated in clause 3 of the sales agreement not
later than 10 days of such payments and if the first and second
respondents fail to comply with this paragraph 7, then and in that
event, the Deputy Sheriff, for the District of Windhoek is authorized
to take such steps and to sign such documents as may be necessary to
register the Farm in the applicant’s name.


 


8         
The first and second respondents must, jointly and severally, the one
paying the other to be absolved, pay the applicant’s costs for
this application on the scale as between attorney and client, which
costs include the costs of one instructing and one instructed
counsel.



 


 



JUDGMENT


 


UEITELE
J:


 


Introduction


 


[1]       
On 06 December 2010 and at Grootfontein, the first respondent in this
application (I will, in this judgment, refer to the first respondent
as the 'the seller') entered into a written agreement (I will, in
this judgment, refer to the written agreement as 'the sales
agreement') with the applicant (I will, in this judgment, refer to
the applicant as 'the purchaser'), in terms of which the seller sold
to the purchaser a certain Farm Guiganab-Ost, No. 273, Registration
Division “B”, situate in the District of Grootfontein,
Otjozondjupa Region, measuring 3006,6982 (Three Nil Nil Six comma Six
Nine Eight Two Hectares) (I will, in this judgment, refer to the this
property as 'the farm').


 


[2]       
I will, below, quote the paragraphs of the sales agreement which are
in my view relevant to the resolution of this matter. Clauses 1 and 3
of the sales agreement amongst others provides as follows:


 


1     
SALE AND PURCHASE


The
seller hereby sells to the Purchaser who hereby purchases the under
mentioned property at the price and upon the conditions more fully
describe hereinafter.


 


3      
PRICE:


3.1   
The purchase price of the Farm is an amount of N$3,608,037.84 (Three
Million Six Hundred and Eight Thousand Thirty Seven Namibia Dollars
Eighty our Cents) calculated at an amount of N$1,200.00 (One Thousand
Two Hundred Namibia Dollar) per hectare over the 3006.6982 (Three Nil
Nil Six Point Six Nine Eight Two) Hectares, payable as follows:


3.1.1     
a deposit in the amount of N$500,000.00 (Five Hundred Thousand
Namibia Dollars) upon signing;


 


3.1.2     
the annual bond payments in the amount of N$70,000.00 (Seventy
Thousand Namibia Dollars) due and owing by the Seller to the Bank for
the period 2011 to 2014;


 


3.1.3     
the balance of the purchase price (after deduction of the
deposit and the annual bond payable) free of any interest against
registration of transfer of the property into the applicant’s
name…’


 


[3]       
Clause 6 of the sales agreement amongst others provides as follows:


 


6     
POSSESSION, OCCUPATION AND TRANSFER:


 


6.1   
The parties hereby record that the property shall only be transferred
into the name of the Purchaser upon the lapsing of the non-alienation
clause registered over the Farm in favour of the Agricultural Bank of
Namibia in 2014.


 


6.2   
The Purchaser shall rent the property from the Seller as from the
date of signature of this agreement until the property is registered
in the name of the Purchaser upon the lapsing of the non-alienation
clause registered over the property in favour of Agricultural Bank of
Namibia in 2014.


 


6.3
   The Seller shall give free access, possession and vacant
occupation of the property to the Purchaser on the date of signature
of this agreement pending the fulfillment of the suspensive
conditions referred to in paragraph 20 hereinunder, from which date
the risk of profit or loss shall pass to the Purchaser.


 


6.4   
The Seller shall ensure that all the employees have been fully
remunerated and that all employees and other occupants who are not
related by the purchaser have vacated the property the property on
the date of signature of this agreement.


 


6.5   
Both the seller and the Purchaser undertake not to allow any person
any hunting rights on the Property from the date of signature of this
agreement unless mutually agreed upon between the parties.’


 


[4]
Clause 7 of the sales agreement amongst others provides as follows:


 


7         
OCCUPATIONAL RENTAL:



 


The
Purchaser shall not be required to pay any occupational rental to the
seller as the deposit in the amount of N$500,000.00 payable upon
signing this agreement and the interest accruing on such amount shall
be regarded and accepted by both parties as sufficient compensation
for the occupation of the Farm until the date of transfer thereof in
the name of the Purchaser.’


 


[7]       
On 06 December 2010 the purchaser, by cheque, paid the deposit in the
amount of N$ 500 000 to the Seller. The purchaser furthermore made
the following payments:


 


(a)         
An amount of N$ 70 000, on 03 November 2011, to the Agricultural Bank
of Namibia in respect of bond repayments due and owing by the seller
to the Agricultural Bank of Namibia for the period 2010;


 


(b)         
An amount of N$ 60 000 to the seller; on 14th December
2014;


 


(c)         
An amount of N$ 206 596,44, on the 4th of September 2012
to the Agricultural Bank of Namibia in respect of bond repayments due
and owing by the seller to Agricultural Bank of Namibia for the
period 2012 to 2014.


 


I
pause here and observe that all these payments were effected with
cheques drawn by Mr. A A Intamba.


 


[8]       
After paying the deposit the purchaser took occupation of the farm
and has been in occupation of the farm from December 2010 to the date
when these proceedings were instituted, but certain events which
resulted in the current proceedings transpired during the period
between the purchaser taking occupation of the farm and the
institution of these proceedings. I will, however, only deal with the
events relevant to institution of these proceedings.


 


[9]       
On the 6th of June 2014 the seller’s legal
practitioners of record Dr Weder, Kauta & Hoveka Inc addressed a
letter to the purchaser. That letter amongst other things reads as
follows:


 


You
will appreciate that in terms of clause 20.7 which reads as follows:


 


In the
event of the property not being transferred into the name of the
Purchaser for any reason whatsoever, the Seller shall repay all
amounts already paid by the Purchaser to the Seller together with
interest of 30% per annum on such amount.”


 


You
will appreciate that the property neighbouring this particular
property was disposed of in 2013 for the amount N$1,700.00 per
hectare and hence the offered amount of N$1,200.00 per hectare in
2010 was not realistic.


 


Hence
we are invoking the provisions of clause 20.7 quoted above and intend
offering the Farm to a third party for the amount of N$1,700.00 per
hectare with the result of reimbursing you as per the provisions of
the above quoted clause 20.7


In
the event that you are interested in taking up this offer of
N$1,700.00 per hectare, kindly inform us within seven (7) days of
receipt hereof, failing which we will be entitled to offer the
property to a third party for the amount of N$1,700.00 per hectare.’


 


[10]     
On the 11th of July 2014 the seller’s legal
practitioners of record addressed another letter to the purchaser.
That letter amongst other things reads as follows:


 


We
hold instructions that on the 06th of December 2010 and at
Grootfontein, the Parties purported to enter into a sales agreement
in relation to the abovementioned farm.


 


On
account of the fact that the purported Purchaser was married in
community of property to the late Andrew Anyanya Intamba, she legally
could not have entered into a sales agreement in relation to the
immovable property Farm Guiganab-OST, No. 273 without the authority
of her late husband. In view of the above, our clients are prepared
to restitute in the amount of N$ 280 000-00 upon the sale of the Farm
at the end of October 2014.


 


Kindly
be advised that this constitute notice that the lease agreement is
being terminated by the end of October 2014 and that you must vacate
the Farm and hand over possession to our clients, failing which legal
action would be taken at your own costs.’


 


[11]     
On the 24th of July 2014 the seller and her spouse (the
second respondent in this application) concluded a deed of sale with
Joel Hafeni Shafashike and Emilia Nandjila Shafashike (the third and
fourth respondents respectively in this application). In terms of
that deed of sale the seller and her spouse sold the farm to the
third and fourth respondents for the sum of N$ 4 960 009,23 (Four
Million Nine Hundred and Sixty Thousand and Nine Namibia Dollars and
Twenty Three Cents).


 


[12]     
As a result of the events that I set out in the preceding paragraphs
the purchaser’s legal practitioners (who I will refer to as
Conradie & Damaseb) of record exchanged correspondences with the
seller’s legal practitioners of record (who I will refer to as
Dr Weder). The first of the correspondences addressed by Conradie &
Damaseb to Dr Weder was on 25 July 2014. In that letter Conradie &
Damaseb amongst others stated that:


 


(a)         
‘The
seller and the purchaser concluded a valid Deed of Sale of the Farm
on the 6
th
of December 2010, and that the purchaser was not prepared to
renegotiate the purchase price as it has already been agreed upon.
 Dr Weder’s attention was drawn to the cases of
Fraser
and Another v Viljoen
[1]
and
Johnston
v Leal
[2]


 


(b)         
The purchaser rejects the seller’s attempts to have the
purchase price revised and that the purchaser was still willing to
comply with the material terms of the Deed of Sale signed on 6th
December 2010. It concluded by stating that purchaser hoped that the
sellers would abandon or desist in their threat to terminate the Deed
of Sale.’


 


[13]      
Dr Weder replied to the letter of 25 July 2014, on 01 August 2014. In
their reply Dr Weder simply stated that they took issues with all the
paragraphs in the letter of 25 July 2015 and that they reiterate the
seller’s instructions to them conveyed on 11 July 2014 to the
purchaser. Conradie & Damaseb addressed a further letter dated 12
February 2015 to Dr Weder in which they amongst others:


 


(a)         
State that the purchaser was not prepared to renegotiate the purchase
price of the Farm since the purchase price has already been agreed
upon.


 


(b)         
State that the purchaser was disturbed by the fact that the seller
and her spouse entered into a deed of sale of the farm with the third
and fourth respondents and that the purchaser’s personal rights
over the farm became vested on the 6th of December 2014.


 


(c)         
State that the purchaser was ready and offered to make the final
payment against the transfer of the farm into her name.


 


(d)         
Put the purchaser on terms to, within ten (10) days of receipt of
that letter; sign all the necessary papers for the waiver.


 


(e)         
Requested the seller to provide Conradie & Damaseb, with the
assurance that second deed of sale concluded with the third and
fourth respondents would not be proceeded with.


 


[14]     
Dr Weder replied to the letter of 12 February 2015 on 16 February
2015. In their reply Dr Weder stated that seller was under no
obligation to give the assurance sought, and invited the purchaser to
approach the High Court for an interdict if she so chose. The letter
furthermore demanded that purchaser pay rental for the month of
January 2015 in the amount of N$10 416,66 as per paragraph 7 of the
sales agreement.


 


[15]     
On 13 March 2015 the purchaser approached this court on an urgent
basis seeking interim relief pending the return date. The urgent
application was struck from the roll for lack of urgency. On 17 March
2015 the purchaser in terms of Rule 73 (3) caused the Notice of
Motion to be served on the seller. In the Notice of Motion the
purchaser in essence sought[3]
an order of specific performance against the seller. On 31 March 2015
the seller and his spouse signified their intention to oppose the
relief sought by the purchaser and on the 21
st
of April 2015 the seller and his spouse filed their affidavits
opposing the purchaser’s application. In the opposing affidavit
the seller did not answer the allegations made by the purchaser but
simply raised a point
in
limine
.


 


[16]     
I will, verbatim, quote the point in limine raised by the
seller in his opposing affidavit, he said:


 


POINT
IN LIMINE


 


10.   
I hereby wish to raise a point in limine at the
outset, which I am advised by my legal practitioners of record, Mr.
TK Kamuhanga, which advice I verily believe to be true and correct,
if successful, will render an end to the current litigation. Towards
that end, I will also not venture to deal with any of the other
allegations raised by the applicant in the founding affidavit.


 


11.   
I respectfully submit that the "purported" Agreement of
Sale entered between the parties on or about the 6th day
of December 2010, as evidenced by annexure "J3” to the
applicant's founding affidavit, is effectively null and void,
for lack of:


 


11.1    
compliance with the provisions of section 7 of the Married Persons
Equality Act, Act No.1 of 1996, and


 


11.2    
as well as for lack of compliance with the provision of section 1 of
the Formalities in respect of Contracts of Sale of Land Act, Act No.
71 of 1969.


 


12.      
It is further my contention that the applicant never obtained consent
in writing from her late husband at the time of entering into the
above-mentioned sale agreement. I am advised that further argument in
this regard will be advanced at the hearing hereof.


 


13.      
For the reasons stated hereinabove, do we pray for the dismissal of
the applicant's application, with costs on the basis of one
instructing counsel and one instructed counsel.’


 


The
Law


 


[17]     
It is now well established that in application proceedings the
affidavits take the place not only of the pleadings in action
proceedings but also of the essential evidence which would be led at
a trial. In the South African case of
Hart
v Pinetown Drive-In Cinema (Pty) Ltd
[4]
Miller
J said:


 


It
must be borne in mind, however, that where proceedings are brought by
way of application, the petition is not the equivalent of the
declaration in proceedings by way of action. What might be sufficient
in a declaration to foil an exception, would not necessarily, in a
petition, be sufficient to resist an objection that a case has not
been adequately made out. The petition takes the place not only of
the declaration but also of the essential evidence which would be led
at a trial and if there are absent from the petition such facts as
would be necessary for determination of the issue in the petitioner's
favour, an objection that it does not support the relief claimed is
sound. For the reasons I have stated herein, I am of the opinion that
there is a dearth of such facts as, if true, would support the
allegations of unfair and oppressive conduct in the management of the
company's affairs and the objection in limine must accordingly
be upheld.’


 


[18]     
In the matter of
Patrick
Inkono v The Council of the Municipality of Windhoek

[5] Schimming-Chase, AJ said the
following:


 


It
is trite law that in motion proceedings the affidavits serve not only
to place evidence before the Court but also to define the issues
between the parties. In so doing the issues between the parties are
identified. This is not only for the benefit of the Court but also,
and primarily, for the parties. The parties must know the case that
must be met and in respect of which they must adduce evidence in the
affidavits.”


 


[19]     
Where a party fails to deal with allegations by his or her opponent
the allegations by the opponent will be accepted as correct. Muller J
said the following in the matter of
O'Linn
v Minister of Agriculture, Water and Forestry:
[6]


 


[8]      
By electing not to answer the allegations made by the applicant in
his founding affidavit by way of an answering affidavit, it follows
that the facts raised in applicant's founding affidavit were not
placed in dispute and should be accepted. This was in fact conceded
by Mr. Marcus.’


 


[20]     
I am of the view that the provisions of the Married Persons Equality
Act, 1996 which are relevant to this matter are ss 6, 7 and the
definition of joint estate in section 1. I will reproduce them here.
Section 1 defines ‘joint estate’ as follows:


 ‘.
. .joint estate" means the estate of a husband and wife married
in community of property’;


 


Sections
6 and 7 of the Married Persons equality Act, 1996 provide as follows:


 


6     
Spouse's juristic acts generally not subject to other spouse's
consent


Subject
to section 7, a spouse married in community of property may perform
any juristic act with regard to the joint estate without the consent
of the other spouse.


 


7      
Acts requiring other spouse's consent


(1)       
Except in so far as permitted by subsection (4) and (5), and subject
to sections 10 and 11, a spouse married in community of property
shall not without the consent of the other spouse-


 


(a)       
alienate, mortgage, burden with a servitude or confer any other real
right in any immovable property forming part of the joint estate;


 


(b)       
enter into any contract for the alienation, mortgaging, burdening
with a servitude or conferring of any other real right in immovable
property forming part of the joint estate;


 


(c)       
alienate, cede, or pledge any shares, stocks, debentures, debenture
bonds, insurance policies, mortgage bonds, fixed deposits or similar
assets, or any investment by or on behalf of the other spouse in a
financial institution, forming part of the joint estate;


 


(d)       
alienate or pledge any jewelry, coins, stamps, paintings, livestock,
or any other assets forming part of the joint estate and held mainly
as investments;


 


(e)       
alienate, pledge, or otherwise burden any furniture or other effects
of the common household forming part of the joint estate;


 


(f)       
as a credit receiver enter into a credit agreement as defined in the
Credit Agreements Act, 1980 (Act 75 of 1980), and to which the
provisions of that Act apply in terms of section 2 thereof;


 


(g)       
as a purchaser enter into a contract as defined in the Sale of Land
on Installments Act, 1971 (Act 72 of 1971), and to which the
provisions of that Act apply;


 


(h)       
bind himself or herself as surety;


 


(i)           
receive any money due or accruing to that other spouse or the joint
estate by way of-


(i)      
remuneration, earnings, bonus, allowance, royalty, pension or
gratuity by virtue of the other spouse's employment, profession,
trade, business, or services rendered by him or her;


 


(ii)      
compensation for loss of any income contemplated in subparagraph (i);


 


(iii)     
inheritance, legacy, donation, bursary or prize left, bequeathed,
made or awarded to the other spouse;


 


(iv)    
income derived from the separate property of the other spouse;


 


(v)     
dividends or interest on or the proceeds of shares or investments in
the name of the other spouse; or





(vi)    
the proceeds of any insurance policy or annuity in favour of the
other spouse; or


(j)        
donate to another person any asset of the joint estate or alienate
such an asset without value, excluding an asset of which the donation
or alienation does not and probably will not unreasonably prejudice
the interest of the other spouse in the joint estate, and which is
not contrary to any of the provisions of paragraph (a), (b), (c), (d)
and (e).


 


(2)       
The consent required under subsection (1) for the performance of an
act contemplated in that subsection may be given either orally or in
writing, but the consent required for the performance of-


 


(a)       
any such act which entails the registration, execution, or
attestation of a deed or other document in a deed registry; or


 


(b)       
an act contemplated in paragraph (h) of that subsection, shall, in
respect of each separate performance of such act, be given in writing
only.


 


(3)       
The consent required for the performance of any act contemplated in
paragraphs (b) to (j) of subsection (1), except where it is required
for the registration, execution, or attestation of a deed or other
document in a deeds registry, may also be given by way of
ratification within a reasonable time after the performance of the
act concerned.


 


(4)       
Notwithstanding subsection (1)(c), a spouse married in community of
property may without the consent of the other spouse-


 


(a)       
sell listed securities on a stock exchange and cede or pledge listed
securities in order to buy other listed securities; or


 


(b)       
alienate, cede, or pledge-


(i)      
a deposit held in his or her name at a building society or bank; or


 


(ii)      
building society shares registered in his or her name.


 


(5)       
A spouse married in community of property may, in the ordinary course
of his or her profession, trade, occupation, or business perform any
of the acts referred to in paragraphs (b), (c), (f) and (g) of
subsection (1), without the consent of the other spouse as required
by that subsection.


 


(6)       
In determining whether a donation or alienation contemplated in
subsection (1)(j) does or probably will unreasonably prejudice the
interest of the other spouse in the joint estate, the court shall
have regard to the value of the property donated or alienated, the
reason for the donation or alienation, the financial and social
standing of the spouses, their standard of living and any other
factor which in the opinion of the court should be taken into
account.’


 


[21]     
Having set out the law I will now proceed to consider the point in
limine
raised by the seller.


 


The
points in limine


 


[22]     
By electing not to answer the allegations made by the purchaser in
her founding affidavit in his answering affidavit, it follows that
the facts raised by the purchaser in her founding affidavit were not
placed in dispute and I accept them as correct. The purchaser in her
founding affidavit states that during 2010 she and
her late husband (Ambassador Andrew
Anyanya Intamba)
decided to purchase an agricultural farm. As a consequence of that
decision the purchaser and her late husband entered into negotiations
with the seller and his spouse (who were married in community of
property) to purchase the farm. She further alleges that pursuant to
the sales agreement she and her late husband applied for a loan to
the Agricultural Bank of Namibia for the purpose of purchasing
livestock. She further stated that she and her late husband submitted
an application to the Permanent Secretary for the Ministry of Lands
and Resettlement for a waiver as contemplated in s 17(4) of the
Agricultural (Commercial Land) Reform Act, 1995.


 


[23]     
As a result of the allegations by the purchaser that she and her late
husband entered into negotiations with the seller and his spouse for
the sale and purchase of the farm, I enquired from Mr. Kamuhanga who
appeared on behalf of the seller and his spouse on what basis the
argument is advanced that the purchaser concluded the sales agreement
without the consent of her husband. He replied that ex facie
the sales agreement which was only signed by the purchaser and the
seller it is evident that the consent required by the Married Persons
Equality Act, 1996 was absent.  I do not agree with Mr.
Kamuhanga that the absence of the signatures of the late Andrew
Anyanya Intamba (the husband of the purchaser) and
Samuelina Tjapaka (the wife of the seller) is evidence of absence
consent from those parties. 


 


[24]     
The seller, in his affidavit, had to furnish facts in the form of
evidence of the nature of the purchaser’s and the seller’s
lack of consents from their respective spouses to conclude the sales
agreement.
As
regards the evidence which the seller had to put before the court in
his affidavit, I echo the words of Kumleben, then AJA, in
Radebe
and Others v Eastern Transvaal Development Board
[7]:
that the allegation (i.e. that the purchaser did not have her
spouse’s consent to enter into the sales agreement) in the
answering affidavit is a conclusion of law, it is at best for the
seller an inference, a "secondary fact", with the primary
facts on which it depends omitted.


 


[25]     
In the matter of
Willcox
and Others v Commissioner for Inland Revenue
[8] 
Schreiner JA explained the concept of ‘
primary
and ‘
secondary
facts as follows:


 


Facts
are conveniently called primary when they are used as the basis for
inference as to the existence or non-existence of further facts,
which may be called, in relation to primary facts, inferred or
secondary facts.’


 


[26]     
In the instant case the seller had to state the facts on which he
based his conclusion that both the seller and the purchaser did not
have the consents of their respective spouses when they concluded the
sales agreement. He did not do that what he did is that he pleaded a
legal result. I have stated above that the payments which the
purchaser effected to the seller and to the Agricultural Bank of
Namibia on behalf of the seller were drawn on the cheques of the late
Andrew Anyanya Intamba. There is no allegation
that the purchaser stole those cheques. The purchaser and her late
husband together approached the Agricultural bank to obtain a loan
for the purchasing of livestock. The purchaser and her late husband
together applied for a waiver from the Ministry of Lands. Why would
the late
Andrew Anyanya Intamba pay for the
purchase of a property he did not authorise, why would he apply for a
loan to buy livestock and why would he apply for a waiver if he did
not consent to the purchase of a farm ? Ms Samuelina Tjapaka the wife
of the seller simply deposed to a supporting affidavit in which she
confirms the contents of the seller’s affidavit in so far as it
relates to her. She does not in her affidavit tell this court that
the seller (her husband) did not have her consent when he signed the
sales agreement, this omission is in my view very significant. The
first and second respondents have in my view failed to establish the
contravention (if any) either by the purchaser or by the seller of s7
of the Married Persons Equality Act, 1996 or of s1 of the
the
Formalities in Respect of Contracts of Sale of Land Act, 1969.
For these reasons the seller’s points
in
limine
must fail.


 


[27]     
I now turn to the pivotal issue of costs. The basic rule is that,
except in certain instance where legislation otherwise provides, all
awards of costs are in the discretion of the court.[9]
It is trite that the discretion must be exercised judiciously with
due regard to all relevant considerations. The court's discretion is
a wide, unfettered and an equitable one.[10]
There is also, of course, the general rule, namely that costs follow
the event, that is, the successful party should be awarded his or her
costs. This general rule applies unless there are special
circumstances present. Costs are ordinarily ordered on the party and
party scale. Only in exceptional circumstances and pursuant to a
discretion judicially exercised is a party ordered to pay costs on a
punitive scale. In this matter, Dr Akweenda who appeared for the
applicant asked the court to exercise its discretion and award the
costs on a scale of attorney and client basis.


 


[28]     
The basis for attorney and client costs was accurately stated by
Tindall JA in
Nel
v Waterberg Landbouwers Ko-operatiewe Vereeniging
[11]
in the following words:


 


The
true explanation of awards of attorney and client costs not expressly
authorized by Statute seems to be that, by reason of special
considerations arising either from the circumstances which give rise
to the action or from the conduct of the losing party, the court in a
particular case considers it just, by means of such an order, to
ensure more effectually than it can do by means of a judgment for
party and party costs that the successful party will not be out of
pocket in respect of the expense caused to him by the litigation.”


 


[29]     
In the matter of
Multi-Links
Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd
[12]
Fabricius J said the following:


 


I
think it is the wrong approach to analyse each and every criticism of
the launching of the attachment application individually, and then
deciding whether or not it, by itself, ought to result in a special
costs order. In my view a balanced view of the whole of the
proceedings and the relevant facts ought to be taken. If a court is
then left with that indefinable feeling, which feeling must, however,
be based on rational analysis of the facts and legal principles, that
something is 'amiss', if I can put it that way, it may justify that
feeling by deciding that the opposing party ought not to be out of
pocket as a result of the application having been launched.’


 


[30]     
This court in the matter of
Erf
Sixty-Six, Vogelstrand v Municipality of Swakopmund
[13]
per Damaseb JP stated:


 


[22]      
The second respondent asked for costs on attorney and client scale.
In order to grant such an order, I must (i) be satisfied that the
conduct of the applicant justifies such an order, and (ii) that a
party-and-party-cost order will not be sufficient to meet the
expenses incurred by the innocent party. Although I am satisfied as
to the first requirement, the second respondent has not placed
evidence before me to satisfy me that a cost order on the normal
scale will not be sufficient to meet its costs in opposing the
review. I will accordingly not grant a punitive costs order against
the applicant.’



 


[31]     
I have referred to some of the more material and relevant
considerations in these proceedings. Taking a balanced view of the
whole of the proceedings and the relevant facts in this matter I am
left with the indefinable feeling, that something is 'amiss'. In
adopting this overall and balanced view of all the material facts I
am of the view that the purchaser ought not to be out of pocket in
these proceedings. I deem it therefore just and equitable that I make
the following:


 


1            
The first and second respondents’ point in limine is
dismissed;



 


2            
The Memorandum of Agreement of Sale of the Immovable Property
described as :


 


CERTAIN:
Farm Guiganab-Ost, No. 273,


SITUATED:
Registration Division “B”


Otjozondjupa
Region,


 


MEASURING
3006, 6982 (Three Thousand and Six comma Six Nine Eight Two)
Hectares


 


HELD
By Deed of Transfer No. [T 5……..]


entered
into by and between the first respondent and the applicant on 6th
December 2010 is declared valid and binding;


3            
The first and second respondents must apply for and obtain a
Certificate of Waiver from the Minister of Lands and Resettlement
through the Permanent Secretary as contemplated in section 17(4) of
the Agricultural (Commercial) Land Reform Act, 1995 and Clause 20.2
of the sales agreement by no later than fourteen days (i.e. not later
than the 01st of October 2015) from the date of this of
this order.


 


4            
If the first and second respondents fail or refuse to neglect to
comply with paragraph 3 of this order then and in that event the
Deputy Sheriff, for the District of Windhoek is ordered and
authorized to apply for and obtain the Certificate of Waiver from the
Minister of Lands and Resettlement through the Permanent Secretary as
contemplated in section 17(4) of the Agricultural (Commercial) Land
Reform Act, 1995 and Clause 20.2 of the sales agreement;



 


5            
The first and second respondents are interdicted and restrained from
taking any steps whatsoever pursuant to the purported agreement which
the first and second respondents entered into on or about 24th
July 2014 regarding the sale of the Farm by the first and second
respondents to the third and fourth respondents.



 


6            
If the first, second, third and fourth respondents have registered
the Farm in the name of the third and fourth respondents prior to the
hearing of this application pursuant to any purported agreement
entered into by the aforesaid respondents, declaring that such
registration is declared void and of no legal force and effect.



 


7         
The first and second respondents are directed to take such steps as
are necessary to pass transfer to the applicant against payment of
such transfer costs as contemplated in clause 4 of the sales
agreement by the applicant and any outstanding balance on the
purchase price as contemplated in clause 3 of the sales agreement not
later than 10 days of such payments and if the first and second
respondents fail to comply with this paragraph 7, then and in that
event, the Deputy Sheriff, for the District of Windhoek is authorized
to take such steps and to sign such documents as may be necessary to
register the Farm in the applicant’s name.


 


8         
The first and second respondents must, jointly and severally, the one
paying the other to be absolved, pay the applicant’s costs for
this application on the scale as between attorney and client, which
costs include the costs of one instructing and one instructed
counsel.





SFI
Ueitele


Judge


APPEARANCES


APPLICANT:
Dr S Akweenda


Instructed
by Conradie & Damaseb, Windhoek


1st
& 2nd RESPONDENTS: Mr T Kamuhanga


Of
Dr Weder, Kauta & Hoveka, Windhoek


3rd
& 4th RESPONDENTS: No Appearance


5th
RESPONDENT Government Attorney



[1]
2008 (4) SA 106 at 110 F-G.




[2]
1980 (3) SA 927 at 946 H.




[3]
The purchaser sought the following relief in the Notice of Motion,
an order:


1
Declaring the Memorandum of Agreement of Sale of the Immovable
Property described as a certain Farm Guiganab-Ost, No. 273, situate
in the District of Grootfontein, Otjozondjupa Region, measuring
3006.6982 (Three Nil Nil Six Point Six Nine Eight Two Hectares),
(hereinafter referred to as “the Farm”) entered into by
and between the first respondent and I on 6th December
2010.





2
Directing (compelling) the first and second respondents to apply for
and obtain a Certificate of Waiver from the Minister of Lands and
Resettlement through the Permanent Secretary contemplated in section
17(4) of the Agricultural (Commercial) Land Reform Act No. 6 of 1995
and Clause 20.2 of the Deed of Sale of the Farm within a period of
seven (7) days of this order. In the event of the first and second
respondents failing or refusing to or neglecting to comply with this
order directing the Deputy Sheriff, Windhoek to apply for and obtain
the aforesaid waiver;





3
Interdicting and restraining the first and second respondents from
taking any step whatsoever pursuant to the purported agreement which
the first and second respondents entered into on or about 24th
July 2014 regarding the sale of the Farm by the first and second
respondents to the third and fourth respondents, pending the
granting of the Certificate of Waiver referred to in paragraph 2
supra.


4
In the event of the first, second, third and fourth respondents
having taken steps to have the Farm registered in the name of the
third and/ or fourth respondents prior to the hearing of this
application pursuant to any purported agreement entered into by the
aforesaid respondents, declaring such a transfer null and void and
of no legal force and effect.





5
Declaring that if the waiver referred to paragraph 2 supra is
granted, the applicant is entitled to take the transfer of the Farm
into my name. . .’.




[4]
1972 (1) SA 464 (D).




[5]
An unreported judgment of this Court, Case No A 55/2013 [2013]
NAHCMD 140 (delivered on 28 May 2013).




[6]
2008 (2) NR 792 (HC) at 795F – G.




[7]
1988 (2) SA 785 (A) at 793C-G.




[8]
1960 (4) SA 599 (A) at 602.




[9]
Hailulu
v Anti-Corruption Commission and Others

2011 (1) NR 363 (HC) and
China
State Construction Engineering Corporation (Southern Africa) (Pty)
Ltd v Pro Joinery CC

2007 (2) NR 674.




[10]
See
Intercontinental
Exports (Pty) Ltd v Fowles

1999 (2) SA 1045.




[11]
1946 AD 597.




[12]
2014 (3) SA 265 (GP) at 290.




[13]
2012 (1) NR 393 (HC) para [22], at 400 F-G.