REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case no: I 3511/2009
In the matter between:
v Namundjebo (I
3511/2009)  NAHCMD 12 (18 September 2012)
2012; 30 July 2012
The defendant is ejected
from the deceased’s estate property at Erf 159, Tsumeb,
Republic of Namibia. The defendant’s counterclaim is dismissed.
The defendant will pay the costs in respect of both claim and the
counterclaim, such costs will include the costs of one instructing
counsel and one instructed counsel.
 In this matter,
plaintiff in her capacity as the Executrix in the Estate of the late
Frans Gawanab, seeks an order in terms whereof the defendant is
evicted from certain premises, namely Erf 159, Tsumeb in the Republic
 It is common cause
that the late Frans Gawanab was the registered owner of the said erf
and it is reflected as such in the Title Deed pertaining to this
 That contention has
not been disputed by the defendant. It is also common cause that the
defendant is in occupation of the property and has been in occupation
thereof for a number of years.
 It is incumbent upon
the defendant, once it is established that the plaintiff is the owner
of the property and she is in occupation thereof, to establish a
right to occupation.
 Both in the plea and
a counter-claim filed by the defendant it is alleged that the late
Frans Gawanab had sold the property to the late Elias Namundjebo and
that the purchase price in respect of that property had been paid.
 It is not disputed by
the plaintiff that an Agreement of Sale was contemplated between the
parties and that in anticipation of the conclusion of the Deed of
Sale the sum of two hundred and fifty thousand Namibian Dollars
(N$250 000-00), being the purchase price, had been paid.
 Although various
claims were pursued in the counter-claim during the course of the
hearing, Van Der Westhuizen who appeared for the defendant abandoned
then all but one. The only order she is asking for in the
counter-claim is an order directing the plaintiff to transfer the
ownership of Erf 159 to the defendant.
 It is evident from
the evidence of Mr Pretorius, a legal practitioner practising at
Tsumeb, that he at one stage acted for both Mr Gawanab and the late
Mr Namundjebo and that he was instructed to draft a Deed of Sale in
respect whereof Erf 159 was to be sold to the late Mr Namundjebo.
 He testifies further
and it common cause that the parties never signed the Agreement. The
Agreement concluded between the parties, therefore, at all times was
and remains a verbal agreement.
 Ms Van Der
Westhuizen argued before me that it is inequitable that the
defendant, having paid the purchase price, is now not in a position
to take transfer of the property and if I understood her correctly,
she sought to argue that the equities of the matter should dictate
that I should order the plaintiff to transfer the property to the
defendant despite the absence of a written Agreement of Sale.
 I do not need to
dwell on this particular argument, I can do no better than quote from
the work of Christie, The Law of Contract in South Africa and the
passage I have in mind appears at page 122 of the First Edition of
that work. It reads as follows:
“The effect of
non-compliance with the requirements of Section 2(1) is that the
contract shall be of no force or effect, that is what Section 2(1)
plainly says since Wilken
1930 AD 135 at 143, it has been trite that a transaction which has no
force or effect is necessarily void ab initio and can under no
circumstances confer any right to action. So neither party can
enforce the informal contract against the other even if he has fully
performed his part of the contract.”
 Ms Van Der
Westhuizen was not able to refer me to any authority which runs
counter to the passage I have quoted and I have not been able to find
 It follows in my
judgment that the occupation of the property by the defendant is
 In the result I
grant an order ejecting the defendant from the deceased estate’s
property at Erf 159, Tsumeb, Republic of Namibia. The defendant’s
counter-claim is dismissed and the defendant is ordered to pay the
costs in respect of both claim and counter-claim. Such costs will
include the cost of one Instructed and one Instructing counsel.
P J Miller
APPELLANT : C J MOUTON
Instructed by Dr. Weder,
Kauta & Hoveka Inc.., Windhoek.
RESPONDENT: C VAN DER
Instructed by Sisa Namandje & Co.