Court name
High Court
Case name
Kalipi Ngelenge t/a Rundu Construction v Anton E. Van Schalkwyk t/a Rundu Welding & Construction
Media neutral citation
[2010] NAHC 14




the matter between:






Heard: 2 February 2010

Delivered: 5 February 2010



[1] The
plaintiff sues the defendant for the amount of N$30 000 over the
defendant’s admitted failure to return a truck belonging to the
plaintiff after the expiry of the period over which the defendant
hired the truck. The claim is framed in contract as will soon become
apparent. Both the plaintiff and the defendant are in the
construction business. They reside in Rundu. The plaintiff uses the
subject truck for the purpose of transporting building material to
building sites. He had employed one Hauanga Kambinda as his driver to
transport his building material to the building sites.

[2] It is common
cause that on 8 June 2006 the defendant hired a Mercedes Benz truck
from the plaintiff at Rundu. The defendant wanted the truck to
undertake a business trip from Rundu to a place called Mavinga in
Angola where he had a construction business going. It was also
agreed that the defendant would pay the plaintiff N$5000 for the
trip. That amount was indeed paid up front. The plaintiff’s
driver would drive the truck to Mavinga, and the defendant would be
responsible for the driver’s food and accommodation whilst in
Angola. The driver’s remuneration remained the responsibility
of the plaintiff even during the defendant’s trip with the
truck to Mavinga.

[3] Following the
agreement, the defendant left for Mavinga on 8 June 2006 with the
plaintiff’s truck driven by Kambinda and only returned the
truck to the plaintiff on 28 July 2006, i.e. 7 weeks after he left
Rundu. I am satisfied that the plaintiff and his only other witness
(the driver Kambinda) proved on a balance of probabilities that the
defendant agreed with the plaintiff to hire the truck only for the
period of one week from 8 June 2006 and that the defendant prevented
the truck (whilst in Angola) from returning to Rundu with the
plaintiff’s driver after the expiry of one week, contrary to
the agreement between the parties. The defendant elected not to
testify in this matter, and the plaintiff’s evidence as to the
existence of the agreement of hire of the truck for one week only,
and the failure of the defendant to return the truck as agreed,
remain uncontroverted. The defendant therefore retained possession
of the truck in Angola for 6 weeks without the plaintiff’s
consent and contrary to the agreement between the parties.

[4] On
cross-examination the plaintiff was asked by Mr. Vaatz for the
defendant to whom the truck belonged. The plaintiff initially said
the truck belonged to the “Company Rundu Construction”
and later to the “Close Corporation Rundu Construction”.
Assuming this to be a concession in the defendant’s favour that
the truck did not belong to the plaintiff who sued in his personal
capacity, Mr. Vaatz amended the plea of the defendant to deny
plaintiff’s ownership of the truck, given the plaintiff’s
concession that it belonged to a CC. I granted the amendment. I do
not think that the confusion created by the plaintiff’s
testimony on the ownership issue assists Mr. Vaatz. I got the very
distinct impression that the plaintiff is an unsophisticated man who
did not appreciate the significance of the questions posed by Mr.
Vaatz on that issue and he clearly did not understand the concepts of
a “Company” or “Close Corporation”. The
concession could only meaningfully be held against the plaintiff if
the defendant had from the start denied that the truck belonged to
the plaintiff, enabling the plaintiff to have his legal advisors
properly direct his mind thereto and assist him appreciate the
difference between him as a person and any corporate entity which
might be said to have owned the truck. I am satisfied that the
plaintiff established that the truck belonged to him. At all events,
his particulars make clear that he was either the owner of the truck
or its “bona fide possessor”. The latter would give him
every right to sue in the circumstances he did.

[5] Mr. Vaatz for
the defendant closed the defense case without calling any witness in
support of the defendant’s case and submitted that the
plaintiff’s particulars of claim are bad in law for their lack
of the averments necessary to properly found a claim for contractual
damages. Mr. Vaatz maintained that the plaintiff was required to
allege and prove not only the breach of contract but - given that
the claim is based on damages arising from the contract breach –
to allege that he suffered damages arising from the breach , the
nature of those damages and how they were occasioned by the contract
breach attributed to the defendant.

The particulars
of claim

[6] In relevant
part, the particulars of claim allege that:

defendant wrongfully and unlawfully breached the terms of the
agreement by:

8.1 Failing and
neglecting to return the truck to the plaintiff after the lapse of
the period agreed upon between the parties, and thereby retaining the
truck for an additional period of six (6) weeks;

8.2 alternatively,
failing, neglecting and refusing to allow the truck to be returned to
the plaintiff after the lapse of the period agreed upon between the
parties, and thereby retaining the truck for an additional period of
six (6) weeks;

9. As a result of
the defendant’s conduct, above mentioned in paragraph 8 hereof,
plaintiff was unable to utilize his truck, in particular for his
business purposes, for a period of six (6) weeks

10. In the
premises the defendant is liable towards the plaintiff for the sum of
N$ 30 000-00,
amount is calculated on a basic amount of N$ 5 000-00 which is
increased for each of the aforesaid six (6) weeks’’

(Emphasis supplied)

[7] As I
understand Mr. Vaatz, his attack is two –pronged: First he
argues that the plaintiff fails to allege (and in fact failed to
prove) what “business” of his suffered damages as a
result of the breach and the nature and extent of such damage. He
specifically referred to the fact that on cross-examination the
plaintiff conceded that he did not normally use the truck for hire to
others for consideration and in fact had not contemplated hiring it
out to anyone if it were at his disposal; that he did not fail to
meet any contractual obligations during that period as result of the
absence of the truck, and so on. (I pause to observe that the
plaintiff did not allege in the particulars of claim that it was
within the contemplation of the parties that if the defendant failed
to deliver the truck after a week of renting it, the defendant would
be liable to the plaintiff in the amount of N$5000 for every week
that the truck was not delivered.)

[8] The underlying
premise on which the particulars of breach and damage are drafted in
the present case – i.e. that just because a contract was
breached damages must be presumed to have flowed- is erroneous. As
was observed by Corbett JA in
Brickworks (Pty) Ltd v Roberts Construction Co Ltd

1977 (3) SA 670 (A) at 687D-688A:

To ensure
that undue hardship is not imposed on the defaulting party …
the defaulting party’s liability is limited in terms of broad
principles of causation and remoteness, to (a) those damages that
flow naturally and generally from the kind of breach of contract in
question and which the law presumes the parties contemplated as a
probable result of the breach, and (b) those damages that, although
caused by the breach of contract, are ordinarily regarded in law as
being too remote to be recoverable unless, in the special
circumstances attending the conclusion of the contract, the parties
actually or presumptively contemplated that they would probably
result from its breach (
Investments (Pty) Ltd v Kalovyrnas

1976 (2) SA 545 (A) at 550).)

The damages
described in limb (a) … are often labeled “general”
or “intrinsic” damages, while those described in limb (b)

called “special” or “extrinsic” damages.”

[9] The plaintiff
testified on cross-examination that his agreement with the defendant
involved the use of the truck for only one week and that it was not
intended that the defendant would undertake any further trips with
the truck after the first one. His evidence that he had not intended
to hire out the truck after it had returned and that he had not lost
out on income –generating opportunities because of the truck’s
late delivery, negates the existence of any extrinsic damages. The
closest the plaintiff came to making the case for such damages was
when he testified that because the truck was late he had to use other
(much smaller) vehicles to transport building material to building
sites. He also testified that he at other times hired other vehicles
to take building material to building sites. None of these special
damages had been either alleged or proved. Mr. Vaatz’s first
argument therefore has merit.

[10] Mr. Kamanja’s
rearguard argument was that the present claim is analogous to the
situation where a lessee of a building “holds over” after
the expiry of a lease of rented premises and would be held liable to
the lessor

the length of such unauthorized holding over. He argued that it
cannot lie in the mouth of the person holding over to argue that the
lessor had not suffered damage from the holding over.

[11] It must be
correct that a lessor would be entitled to damages against a lessee
who fails to return the thing let at the expiry of the contracted
period. It does not follow though, as suggested by Mr. Kamanja that,
without more, the amount of damages would be the same as the original
agreed rental. I agree with the following observation in
Precedents of Pleadings
edn. P220:

plaintiff must allege and prove the market rental value of the
premises for the period of the unlawful occupation and must show, at
that the premises were, in fact, lettable.
Park (Pty) Ltd v Hunter Your Wine & Spirit Merchant (Pty) Ltd

1985 (1) SA 248 (W).”

On the score of
holding over too, I am afraid the plaintiff’s claim fails.
Neither his pleadings nor his evidence meet the requirements for
holding over.

[12] True, the
effect of holding over may lead to the conclusion of a new agreement
between the parties on some or all of the terms of the old agreement.
This, as Amler’s
notes, is called “tacit relocation of the agreement”
comparable to the “tacit relocation of a lease”. A tacit
relocation of an agreement is said to arise where the parties after
the termination of the initial agreement conduct themselves in a
manner that gives rise to the inescapable inference that
the revival of their former contractual relationship on the same
terms as existed before. A tacit relocation of an agreement is a new
agreement and not the continuation of the old one:
Fried Chicken (Pty) Ltd v Sirad Fast Foods CC and Others

2002 (1) SA 822 at 825D-E. An essential prerequisite of a relocation
of a lease is that it must be unequivocally inferred from the conduct
of the parties that a renewed or new lease had come into effect. The
conduct of the parties (especially of the plaintiff) in the present
case points in the opposite direction: The plaintiff testified that
he demanded the truck back from the plaintiff on many occasions and
did not intend to continue renting the truck to him.

The mere
fact that a lessee remains in occupation of the leased premises after
the expiration of the term of the lease does not, of course, mean
that there is a tacit renewal of the lease. Similarly, the belief, or
impression, of one of the parties to the lease that there has been a
tacit relocation is not sufficient to bring a new lease into
existence. There must be compliance with the requirements for
implied or tacit agreement’’
Bank Ltd v Withinsawproperties (Pty) Ltd

2002 (6) SA 236 at 248J/ 249A. (Emphasis supplied)

[13] The plaintiff
alleges no such tacit agreement between the parties. In fact his
evidence left me with the impression that beyond the expiry of the
one week, he had no further agreement with the defendant.
Regrettably, the plaintiff pleads no case of tacit relocation of the
initial agreement, and his evidence before me does not meet the
requirements for a tacit relocation of contract. The plaintiff’s
particulars of claim and his evidence therefore also fail the test
for the tacit relocation of the original agreement of lease of the
truck to the defendant.

[14] It must be
clear from all that I have said that the particulars of claim in this
case were very poorly drafted. If a modicum of skill was applied in
their preparation, the plaintiff stood a very good chance of success.
That raises the question why the defendant’s legal
practitioners did not except early on to the particulars as they
clearly stood no chance of success in the form they proceeded to
trial. It is trite that a party must raise at the earliest
opportunity possible any objection that might lead to the early
finalization of the matter and not, as was done here, wait until the
last minute to raise such an issue. Such conduct can result in a
party being denied costs. See in this regard:
Life Namibia Ltd v Finance in Education

(Pty) Ltd 2004 NR 125at 132A-J/133A-F.

[15] In the
exercise of my discretion, I am satisfied that the defendant’s
failure to have excepted to the clearly excipiable particulars of
claim at an early stage, is deserving of censure by denying the
defendant costs although successful in resisting the plaintiff’s

[16] Accordingly I
make the following order:

  1. The
    plaintiff’s claim against the defendant is dismissed.

  2. There
    is no order made as to costs against the plaintiff.



AEJ Kamanja

Instructed By:

A Vaatz

Instructed By: ANDREAS