Court name
High Court
Case name
Key Properties (Pty) Ltd v Lemprecht and Another
Media neutral citation
[1996] NAHC 27
















«















KEY
PROPERTIES (PTY) LTD vs MARINA ELIZABETH NATALIA LAMPRECHT &
JOZEF LAMPRECHT



Frank
J. 1996/04/02






Principal
and Agent - Estate Agent - Commission - Claim for payment of
commission - Whether agent's introduction was effective cause of sale
- Sellers negotiate directly with eventual purchaser after
terminating mandate of agent who introduced property to purchaser -
not sufficient to show introduction a causa sine qua non - Where more
than one agent or party involved in events leading up to sale it's
endeavours override the other other factors of importance - Court
holding that in circumstances first introduction by agent was
effective cause of sale and agent thus entitled to its' commission.













KEY
PROPERTIES (PTY) LTD


versus


MARINA
ELIZABETH NATALIA LAMPRECHT JOZEF LAMPRECHT


PLAINTIFF











FIRST
DEFENDANT SECOND DEFENDANT










CORAM:


FRANK,
J.











Heard
on:
1996.03.12,
13,


Delivered
on: 1996.04.02






JUDGMENT



FRANK,
J.

:
The
plaintiff, a limited company, carrying on


business
as estate agents, sued the defendants who were co-owners of a
certain dwelling house situated in Luwigsdorf, Windhoek, for the sum
of N$56 000, being commission on the sale of the aforementioned
house to the Government of Namibia. At all relevant times Mr
Volgraaf acted on behalf of the plaintiff.






During
March or April 1992 the wife of the Speaker of the National Assembly
who was at that stage a colleague of Mr Volgraaf informed the latter
that she was looking for a house for the Speaker. Mr Volgraaf
initially was not sure whether she meant a house in his personal
capacity or not. However, it later transpired that she meant that
the Government was looking for a house it would buy and which would
be the official residence of the Speaker of the National Assembly
irrespective of whom the incumbent at any specific time -might be.
After the Plaintiff was formed and Mr Volgraaf became a director he
introduced the house belonging to the defendants to the Government.






He
initially took the wife of the Speaker and when she
showed
interest he also arranged and took the Speaker to
view the house
the next day. On this occasion the Speaker
was accompanied by a
functionary of his office (Mr Agnew)
and his chauffeur. The
Speaker also expressed an interest
in the house and informed him
that Mr Agnew would contact
him again. At a later stage Mr Agnew
informed Mr Volgraaf
that a valuation needed to be made by the
Government of the
house. Mr Volgraaf at this juncture prepared a
portfolio
and also arranged for the plans of the house to be
obtained
from the municipality.
The
portfolio consisted of


photographs
placed in an album with the appropriate descriptions placed next to
the photos. Although the first defendant, Ms Lamprecht, mentioned
that she never saw the completed portfolio she did assist with the
descriptions as Mr Volgraaf was not all that confident in doing the
descriptions in English. This portfolio was handed in at Mr Agnew's
office. Mr Volgraaf also soon after this arranged for the officials
who had to do the valuation of the house to gain access thereto.






After
the valuation was done by the officials, which
included amongst others an architect and quantity surveyor, Mr
Volgraaf kept contact with Mr Agnew who informed him on



15th
September, 1992 that the Government was no longer interested in the
defendants' house and that it was busy with private•negotiations
relating to another house. Mr Volgraaf informed Ms Lamprecht of this
fact and on 22nd September, 1992 fetched the portfolio.








What
had indeed happened appears from documents in possession of the
Government which were produced for the purposes of the trial. Three
houses were shortlisted as possible purchases for a house for the
Speaker. The defendants' house was amongst them. An assessment was
made in respect of each of the three houses. As far as defendants'
house was concerned certain shortcomings were pointed out, the
asking price of Rl million is mentioned, an indication that the
house was valued at R877 000 and then it is curtly stated that "the
purchase of this property is not recommended." One of the other
houses on the shortlist was recommended at a price of Rl,2 million.






During
May, 1993 and after details of that year's budget speech was
published in the media Ms Lamprecht contacted Mr Volgraaf and
informed him that she had noticed that an amount of R900 0 00 was
budgeted for a house for the Speaker and asked him to offer the
house to the Government once again indicating that the house was
available within that price range. Volgraaf contacted Agnew and
relayed what Ms Lamprecht told him whereupon Agnew undertook to
contact Volgraaf in due course.









During
the last week of June, 1993 and the first week of









July,
1993 Volgraaf left for Cape Town and asked an associate of his, a Ms
Zandberg, to attend to his interests in his absence. During this
time Ms Lamprecht phoned and wanted to speak to Volgraaf. She
informed Ms Zandberg that she met the wife of the Speaker who told
her that they were still interested in the property and that
plaintiff must obtain a written offer. Ms Zandberg phoned the
Speaker and his wife who were both not available and left messages
that they must call her. There was no response to the messages.
Shortly thereafter Ms Lamprecht once again phoned Ms Zandberg and
informed her to take their house off the plaintiff's books. A letter
dated 21st July, 1993 withdrawing plaintiff's mandate was, according
to Ms Lamprecht left at the office of plaintiff. Mr Volgraaf
maintained that he never saw this letter.






Ms
Lamprecht knew the wife of the Speaker socially. According to her
she spoke to her on occasions other than the one also mentioned by
Ms Zandberg. On one of these occasions she enquired from the wife of
the Speaker whether they had already purchased a house for the
Speaker and when told not the Speaker's wife also told her that she
must re-offer her house. The Speaker's wife on more than one
occasion told her to re-offer her house to the Government. It was
clear that at least the Speaker's wife was keen on the property as,
according to Lamprecht, she told Volgraaf to re-offer the property
as they (the Speaker and his wife presumably) were keen on the
property. Whereas I do not accept Lamprecht's evidence insofar it
directly conflicts with that of Volgraaf for the reasons set out
herein later









I
have no
reason
to
doubt her evidence that she met the wife of the Speaker on certain
social occasions and that she there enquired about the purchase of a
residence for the Speaker. Volgraaf testified that he also became
aware
of
the fact that
Lamprecht
and
the wife of the
Speaker
knew
each other
from
prior
to
him introducing the
property.
I
find it probable that Lamprecht would have enquired in general terms
whether a house had been found for the Speaker when she met his wife
on social
occasions
as
she knew they were looking for a house.








The
Speaker in conjunction with
officials
of
the
Department of Works had in the meantime in a meeting held on 5th
July, 1993 reviewed the position with regard to an
official residence for the Speaker. Three options were
mentioned
namely
the
"Purchase of a new house, Renovation of an ol<f house"
and "Building a custom-designed new house."
Tb requisites of the house were also noted in
detai According to the Speaker these were not new requisites
1
it
was just a case of putting it in writing for rec
purposes. At this stage the shortlist had fallen by wayside
and the process of purchasing a house was to afresh. As he
could recall the defendants' hour visited again after Ms
Lamprecht made contact with his office.







Ms
Lamprecht said that she contacted the Speak after she
had orally terminated plaintiffs'
mane
about 2nd July, 1933
where
she spoke to Mr Ag? Speaker's personal secretary
re-offering
the



suggesting
that a new assessment be undertaken and that the Speaker once again
visit the house. Approximately a week after
this
discussion
an
architect arrived at the house and she showed him the house. Towards
the end of July, 1993 the Speaker and his wife visited the house and
she
showed
them
the house in detail.
According
to
her
she believed it was during this visit that they decided that hers
was the house that had to be bought. Shortly
after
this
an
official from the Department of Works contacted her whereupon a
price of R800 000 was agreed upon and a contract reflecting this was
concluded in writing on 9th August, 1993. It is common cause that
the house was registered in the name of the Government on 7th
December,
1993.






In
summarising the
facts
aforementioned
I
have
accepted
the facts deposed to by Mr Volgraaf where
his
evidence contradicts that of Ms
Lamprecht.
I
have done this for the following reasons.






According
to Volgraaf he was told by Lamprecht
that
a ne amount of R8 50 000 was wanted from the sale of the hou He
then informed her that if the commission was a
thereto this would amount to over R900 000 and he
suggested that the
price
be stated
as
"Rl m: negotiable." Lamprecht was
agreeable
to this sugge Lamprecht
stated
that the mandate was a written one a purchase price of Rl,2 million
which price incli
agent's
commission. Both
the
portfolio compiled by and the assessment undertaken by the
Government
price
as
Rl million. It is highly unlikely tha



would
have offered the house to the Government at a price of Rl million
"negotiable" if his mandate was for Rl,2 million. In the
further
particulars
to
the plea the defendants stated that Ms Lamprecht signed the written
mandate.
However,
in
her evidence she stated that she and her husband (second defendant)
signed it. The written mandate or a copy
thereof
was
never produced at the
trial,
Lamprecht maintaining
that
Volgraaf
took it
with
him after it was signed. The probabilities in this regard clearly
favours
Volgraaf
in
my view.








Volgraaf
testified
that both the Speaker and his wife were impressed with the house.
Lamprecht
did
not want to use the word "impressed" but
said
that she would say
they
"liked" the house.
Eowever,
in
the affidavit she deposed to opposing an application for Summary
Judgment she stated that both the Speaker and his wife "were
very impressed with the


property
" . From her cross-examination it
was
deal


that
she
was well
aware
of
the
difference in meaning betwee "liked" and "very
impressed". She clearly attempted downplay the
enthusiasm after the
first
introduction to property. Counsel for the defendants submitted
that
not)
really
turned
on
this as Mr
Agnew
testified
that the Spe was impressed with all the houses he saw. I do not
this proposition is sound. If Mr Agnew's evidence i in its
proper perspective it is
clear
that
he refe-the houses shortlisted. This of course included def<
house
also
indicating that this house
was
more than









Approximately
a week prior to the trial defenc notice of an amendment
they would seek of their plea at the
trial.
This
involved pleading a
written
termination of
plaintiff's mandate. As
already
mentioned this document
was
according
to
Lamprecht
delivered to plaintiff whilst
Volgraaf
and
Zandberg
testified
that they never received it
and
only
became
aware of it shortly prior to the trial.
According to Lamprecht
this was just to
confirm
her oral
termination
of the mandate when she informed Ms
Zandberg
to
take
the house of plaintiff's books. The letter is a
termination of
the mandate in itself. It does not refer to
the oral cancellation
at all. If his letter was
only
confirmation
of the oral
termination
it is strange that the
amendment did not mention the oral
termination but
clearly
conveys
the impression that this
letter
was in effect the
termination. Furthermore,
according
to this
letter
she was
going
to
keep "the house on the market with select agents
and also
intend marketing it ourselves." According to her
affidavit
she told Ms
Zandberg
that
they would sell the
house "through other estate agents."
Here it must be borne
in mind that at the time the letter was
allegedly written,
namely 21st July, 1993 she had
already
contacted
the
Government
via the Speaker's office and that a new
assessment had
already
been
done.
Furthermore
the


undisputed
evidence of Ms
Zandberg
was
that Lamprecht told her to take the house off the books as she was
involved in a deal with an oil company. This is contrary to
both the affidavit and the letter. It is clear that no other
agent were approached subsequent to the oral termination. I
als
find it
strange
that Lamprecht never informed her leg representatives of
this letter prior to her discovering









in
a file shortly prior to the trial. Surely she must have known and
recalled that she wrote a letter terminating a mandate even-if she
did not have a copy. After all, she remembered signing a written
mandate. I have my doubts whether this letter existed at all prior
to her "discovery" of it and also, even if it existed,
whether it was delivered to plaintiff's office. That Lamprecht who
was an estate agent for 5 years would have left it at the office
without even a signature acknowledging receipt thereof, is unlikely.








Clause
10 of the agreement eventually concluded with the Government reads
as follows:











"The
Seller is not liable for payment of any commission to
be paid to an agent."









Mr
Jooste who drafted the agreement stated that this clause was
inserted at the behest of the defendants. Lamprecht testified that
she asked Jooste whether an agent was involved in the deal and when
he answered in the negative she requested that the clause be
inserted. She further explained that this was done as there was a
heading "Commission" which Jooste left blank and thus the
request to insert the clause. Apart from the fact that these two
explanations are difficult to reconcile I find the whole explanation
incredulous. If none of the parties were liable for commission the
heading could just have been deleted. If the buyer was liable for
commission this could have been stated. This in any event would have
been none of her business as she would not be liable to an agent of
the buyer. She must have known that no agent
other than plaintiff could have been involved as she terminated
his mandate and she had herself negotiated the sale without
reference to -any other agent. There was no need at all to insert
the clause to indicate it was the "nett price" as also
explained by Lamprecht. If no agent was involved the price mentioned
in the agreement would
ipso
facto

be the nett price. Furthermore as the agent was not a party to the
agreement he would not be bound by it. After the plaintiff claimed
commission this clause was relied on to attempt to get the
Government to pay the commission. This was a tacit admission that
commission had to be paid but Lamprecht explained this was done only
to avoid litigation. However, I must say that if she told her
attorneys what she told the Court I would think it bordered on the
unethical to even attempt to recover the commission from the
Government.






Ms
Lamprecht was an estate agent for 5 years and it seems to me that
she was well aware as to what the problem areas would be in this
matter and in those respects she was not honest with the Court. Thus
the price in the mandate was increased to Rl,2 million, she could
not concede that the Speaker and his wife were very impressed with
the house after being shown it by Volgraaf and her insistence on
clause 10 which clause adumbrates the possibility of a claim for
commission.






While
it is clear that the Government was to purchase a house which would
be the official residence of the Speaker it is also clear that the
present incumbent would have a say in the house that had to be
purchased. If one looks at what happened to the house which forms
the subject matter of this dispute the position can be stated as
follows. The wife of the Speaker would look at potential houses.
Once she felt that a specific house was an appropriate one the
Speaker himself would visit such a house and if he also approved the
necessary steps relating to valuation, etc would be undertaken by
the relevant Government officials. Thus although the Speaker was not
at liberty to purchase at will he would clearly be influential if
not decisive in what house would eventually be bought. Of course
within the parameters set as to price and accommodation. Thus it is
clear that the three houses on the original shortlist all had his
stamp of approval. Conversely stated even if a house technically did
comply with all the requirements but the Speaker did approve of it
it was highly unlikely that it would be bought. Both Volgraaf and
Lamprecht knew this and this is why the Speaker and his wife had to
view the house and why Lamprecht spoke to the wife of the Speaker
and took her interest in the house as an indication that the
Government was keen to buy this house and also why she knew she had
to get a message to the Speaker and not only an official of his
office after her termination of plaintiff's mandate. She was not
satisfied to speak only with Agnew but spoke to the Speaker's
personal assistant as well.






Counsel
for the plaintiff submitted that plaintiff discharged the onus
resting on it to prove it was the efficient cause in the sale that
came about. It was submitted that it was the introduction by
Volgraaf that operated to influence the Government to buy.
Counsel for defendants took issue with this and submitted that it
was indeed the efforts of Ms Lamprecht that constituted the
efficient caqse and in the alternative submitted that this was a
matter where it could not be determined who of Volgraaf or Lamprecht
was the efficient cause and that plaintiff therefore did not succeed
in discharging the onus resting on it.






Both
Counsel referred me to various cases. I do not think it would be
fruitful to deal with all of them as the law seems to be clear and
it is a question of fact to decide what the efficient cause was in
any specific case.






In
Gordon
v Slotar
,
1973(3) (SA) 765 (A) it is made clear that the efficient cause must
depend upon the facts and circumstances of each particular case.
Muller J.A. puts it as follows at 770 - 771:











" ,
the onus was on the plaintiff to establish



on
a balance of probabilities that, as alleged by him, he was 'the
effective cause' of the sale. Although the concept 'effective cause'
in claims for commission has in many decided cases been expressed in
different terminology, and, although the nature of the enquiry in
such cases has often been described in different ways (e.g. whether
the 'activities' of the plaintiff 'caused the sale', i.e. what was
the 'decisive factor', 'overridingly operative') it is in essence
always the same, no matter how much the facts may differ from case
to case. But the question must in each case, of course, be decided
on the facts and circumstances of the particular case."









It
is undisputed and is in fact common cause that Volgraaf on behalf of
the plaintiff introduced the eventual purchaser to the property.
The fact of the introduction is a relevant factor to consider. Thus
in
Lombard
v Reed
,
1948(1) (SA) at p. 3 5 Ramsbottom, J. deals with this aspect as
follows:











"The
Court must look at all the evidence in the case and see if the onus,
which rests on the plaintiff throughout, has been discharged. At the
close of the plaintiff's case there was evidence that there was an
introduction by him of Horn and that Horn has bought. By that
evidence the plaintiff made out a
prima
facie

case, but the case did not end there. Evidence was led on behalf of
the defence. The magistrate had to look at the case, as we have to,
in the light of all the evidence. The question is whether, in the
light of all the evidence in the case, the onus of proving that the
effective cause of the sale was the introduction effected by the
plaintiff has been discharged."









It
is also undisputed and common cause that Lamprecht herself contacted
the eventual purchaser during July, 1993 and made certain
arrangements and negotiated with the eventual purchaser. She
maintains she was the effective cause of the sale. The initial
introduction cannot therefor be viewed in isolation. Miller J.
states the approach in such circumstances in
Wakefield
& Sons (Ptv) Ltd v Anderson
,
1965(4) (SA) 453 (N) at 455 G - 456 B as follows:











"The
onus was therefore upon the appellant, and remained upon it
throughout, to establish that it was the effective cause of the sale
to Cayeux (
Barnard
and Parnv Ltd v Strvdom
,
1946 (AD) 931 at 937) . Where one agent has introduced the property
to the purchaser and another agent has finally negotiated the
transaction and produced the written offer which the seller
accepted, the question whether the first or second agent's efforts
were the effective cause of the sale is often difficult to answer,
but it is obvious that, save in exceptional cases, the first
introduction would necessarily be an important factor. (See judgment
of De Villiers J. P. in
Le
Grange v Melter
,
1925 (OPD) 76 at 80 and
Van
Rooven's Ltd v Cartter
,
1928 (OPD) 32 at 36). These were cases in which the agreements were
finally concluded by the principals themselves but the importance
of the initial introduction is not necessarily lessened by the
circumstance that the final negotiations were conducted by another
agent and not by the principals themselves. (
C
F Van Aswegen v De Clera
,
1960(4) (SA) 875 (A) at 880 -881,
Webranchek
v L K Jacobs & Co Ltd
,
1948(4) (SA) 671 (A) at 685). Whether the first agent's introduction
was the effective cause of the sale going through would depend,
inter
alia
,
upon whether the first agent's introduction still operated to
influence the purchaser to buy and upon the significance or
importance of the part played by the second agent, in a causal
sense, in relation to the conclusion of the contract. (
C
F Van Aswegen v De Clerq
,
supra, at p. 881;
Webranchek
v L K Jacobs & Co Ltd
.
supra, at pp. 679, 681).









In
principle there is no difference whether there is a second agent
involved or one of the parties to the eventual contract such as Ms
Lamprecht in the present case as is also pointed out by Muller J.
supra in the quoted passage.









It
is clear that Lamprecht's contribution to the sale must be
considered. It was a "new" factor introduced into the
chain of events. The position where such a "new" factor
enters the enquiry is stated in
Aida
Real Estates Ltd v Lipschitz
,
1971(3) (SA) 871 (W) at 873 H - 874 C:











"If
a new factor intervenes causing or
contributing to the conclusion
of the sale and the
new factor is not of the making of the agent,
the
final decision depends on the result of a further
enquiry
- viz., did the new factor outweigh the
effect of the
introduction by being more than or
equally conducive to the
bringing about of the
sale as the introduction was, or was
the
introduction still overriding operative? Only in
the
latter instance is commission said to have
been earned. This
enquiry is not a metaphysical
speculation in the result of cause
and effect. It
requires, as is said in
Webrancheck
v L K Jacobs
and Co Ltd
.
1948(4) (SA) 671 (AD), a common sense
approach to the question of
what really caused the
sale to be concluded, "



Stated
differently "where there are competitive causative
factors the appellant must fail unless it can firmly be stated that
its endeavours override other factors of importance." •
(
Basil
Elk Estates (Ptv) Ltd v Carzon
,
1990(2) (SA) (1) at 5 I.






Finally
on the law, it is not sufficient for the plaintiff to prove
that its introduction was a
causa
sine quo non

in the conclusion of the eventual sale it must prove it was the
causa
causans
.
As stated in
Nelson
v Hirschhorn
,
1927 (AD) 190 at p. 197 0 198 per Wessels J.A.











"It
is not enough .... to say .... 'I introduced you .... But for my
introducing you .... would not have sold.' The respondent must go
further; he must satisfy the Court that the ' introduction .... was
not only an incident in the sale - an incident without which the
sale may not have taken place -but that it was the real and
effective cause which brought about the sale. In order to determine
this we must examine closely all the circumstances surrounding the
sale and from those conclude whether the introduction .... was not
only the
causa
sine quo non
,
but also the
causa
causans
.'"









This
point is also succinctly made in the case of
Tophams
Ltd v Sefton (Earl)

, 1966(1) (AER) 1039 at 1044 I in the following terms:











"
Causa
causans

is the real effective cause as contrasted with the
causa
sine quo non

which is merely an incident which precedes in the history, or
narrative of events."









In
my view the plaintiff discharged the onus resting upon it. And I say
this despite the lapse of time from September, 1992 when the
defendants were informed that the Government was not interested in
the property until July,



1993
when Lamprecht contacted the Speaker's office (
cf
Webranchek

case,
supra,
at 683) and the fact that certain new factors had emerged such as
the fact that a specific amount was budgeted for a Speaker's
residence and that a search afresh was contemplated for such
residence (
cf
Basil Elk Estates

case,
supra)
. Ms Lamprecht knew when she discovered that a Speaker's house was
still on the cards that both the Speaker and his wife who would be
very-influential in the eventual purchase had viewed her property
and was impressed with it. She knew this because Volgraaf introduced
the property. Her subsequent discussions at social occasions with
the wife of the Speaker only made her more aware of this fact. The
Speaker's wife told her that she should offer her house to the
Government again clearly indicating that it would seriously be
considered. In fact, after the budget debate, according to her
affidavit in the summary judgment proceedings, she met the wife of
the Speaker at a social occasion where she was informed by the wife
of the Speaker that: "She (wife of Speaker) indicated that her
husband was still very keen on the property and informed me that Mr
Volgraaf had not been in touch with her or her husband for the sale
of the property." Once again the impression gained and the
keenness of the Speaker could only have been as a result of the
introduction to the property by Volgraaf as at that stage the
property had not been revisited. I do not agree with Lamprecht who
maintained that the Government had lost interest in defendants'
property after September, 1992 and it was she who rekindled it. The
Speaker and his wife might not have been aware of the fact that the
property was still available but when this was mentioned to the
Speaker's wife it is clear that she was still very interested in it
and it is not as if she had to be coaxed and cajoled to reconsider
the purchase of this property. Whereas Lamprecht might have been a
new factor in the chain of events when she directly intervened to
sell the property it cannot be said this "new factor (was) not
of the making of the agent." (
Aida
Real Estates Ltd

case,
supra)
She knew about the degree of interest in the property through the
introduction of Volgraaf as already indicated. Here it is also
instructive that she did not bother to contact any other agents
despite her saying this. Apart from knowing that the Speaker and his
wife was keen on the property she also knew from the budget that the
property fell within the price budgeted. Here it must be recalled
that Volgraaf also informed Agnew to this effect. Although the
Speaker testified that as far as he was concerned a house had to be
found de
novo
after the 1993 budget and he was of the view at that stage that the
houses shortlisted had fallen by the wayside I do not think this
takes the matter much further under the present circumstances. Agnew
knew that the house was still available as Volgraaf told him and the
Speaker conceded that even if his office was not contacted the
shortlisted properties might have been considered again, obviously
within the parameters of the budget. It is not as if the Government
had decided that an official residence was not going to be bought
and that certain changes in circumstances made the Government to
reconsider this decision. The Government had during 1992 already
decided in principle to purchase a house which led to the initial
shortlist where the requirements as to the specifications with
regard to accommendation had already been determined although not
reduced to writing and the wherewithal to give effect to the
decision already taken was provided in the 1993 budget. Here it must
be borne in mind that from the evidence it is clear that no other
property was considered after the budget had made funds available. I
am thus of the view that plaintiff proved on a balance of
probabilities that its introduction of the purchaser to the property
was the
causa
causans

of the resultant sale (
C
F van Rooven Ltd v Cartter
,
supra).






Counsel
for defendants submitted that plaintiff did not prove that it found
an able purchaser. How the Government could have tried to avoid the
sale on this basis I fail to see. Be that as it may, the plaintiff
had to prove that the Government was an able purchaser at the time
when the contract was entered into (
Beckvich
v Foundation Investment Co
,
1961
(4)
(SA)
510 (A)). Thus the fact that at the time the Government was
introduced to the property no amount had been budgeted for the
purchase of a Speaker's house is irrelevant. At the time the
contract was signed an amount had been budgeted albeit in two
consecutive years. When the Government attempted to rely on this the
defendants insisted that the terms of the contract be complied with
and the registration took place as the Government by manipulating
the budget paid the purchase price due in terms of the contract.
As was stated in
James
v Smith
,
1931(2) (KB) 317









"I
think that 'ability' does not depend upon whether the purchaser has
the money in hand at the time; to my mind it is a question of fact.
I do not think it depends upon whether he has a binding agreement by
which some third person is obliged to provide him with resources to
carry out the contract. I think it is sufficient if it is proved by
the agent or by the purchaser that the circumstances are such that
if the vendor had been ready and willing to carry out his contract,
he on his part at the proper time could have found the necessary
money to perform his obligation."









Despite
certain qualifications to the word "could" in the
concluding portion which is not really relevant in the present
matter the quoted portion is still current law. (
Wacko
v Record
,
1955(2) (SA) 234 (C) ) . The proof of the pudding is in the eating
thereof and in this case the purchaser did find the money and paid
the purchase price which as there is no evidence to the contrary
suggests that it was an able purchaser when the contract was
concluded, at least to the extent that it could have found the money
at the proper time. Indeed it was proved and it is common cause that
it did find the money at the proper time.






In
conclusion it is necessary to state that although there were certain
other disputes on the papers these fell away by agreement between
the parties. Thus at the pre-trial conference the defendants
admitted that plaintiff possessed the necessary fidelity fund
certificates at the relevant time and at the trial it was agreed
that the relevant tariff of commission was 7% and not 6% as alleged
by defendants thus entitling plaintiff to the amount claimed by it
should it be successful.








In
the result I give judgment in favour of the plaintiff in










ft.
- *



















the
amount of N$56 000 against the defendants jointly, together with
costs and interest at 20% per annum calculated from 8th December,
1993 until the date of payment thereof.