Court name
Supreme Court
Case number
SA 22 of 2020
Title

Krucor Investment Holdings (Pty) Ltd t/a Professional Farming v Kwenani (SA 22 of 2020) [2022] NASC 22 (13 July 2022);

Media neutral citation
[2022] NASC 22
Headnote and holding:

The appellant and the respondent in this appeal were parties to a lease agreement of an agricultural land. The duration of the agreement was nearly ten years, from 1 May 2003 to 30 April 2013. In terms of clause 1.2 of the lease agreement, if the lessee (appellant) elects to renew the lease agreement for a further period, the rent amount payable by the lessee shall be re-negotiated. The appellant through its managing director (Mr Krüger) approached the respondent prior to the initial lease period running out and in terms of clause 1.2 of the lease agreement indicated to the respondent that it intended to exercise its options to renew the lease agreement – the appellant also suggested a new rental amount. The respondent rejected the suggested rental amount and indicated that she would accept an amount of N$102 000 per annum which translated into N$8500 per month. The appellant thought this amount was exorbitant, unreasonable and not acceptable – although it was considering it and would later accept it. In the interim, the respondent withdrew the offer of N$102 000 rental per annum and placed the appellant on terms to either accept or reject a rental of N$20 000 per month by a certain date. Appellant rejected the latter offer as being outlandish and accused the respondent of negotiating in bad faith – claimed that as the previous offer was withdrawn in bad faith, it was still open to it to accept that offer which is what it purported to do through a letter by its Mr Krüger to the respondent. Appellant remained in occupation of the farm land and tendered rental of N$8500 per month which was refused by the respondent. Consequently, the respondent instituted an action against the appellant in the High Court for the eviction of the appellant from the premises, and an order ‘for payment of N$20 000 per month for occupational rent computed from May 2013’ up to the date the appellant vacates her farm. The court a quo found in favour of the respondent, granting her the orders sought with interest in respect of the occupational rent. The appellant noted an appeal against the court a quo’s order.

 

When the matter was argued on appeal, the appellant had already vacated the leased property on 19 November 2020. It withdrew its argument against the court a quo’s eviction order and the finding that the renewal clause did not constitute a valid option. The only issue this Court was seized with was the order of occupational rent – should the court find for the respondent, appellant would be liable for the payment of ‘occupational rent’ and such rent is to be calculated from 1 May 2013 to 19 November 2020 (ie seven years, six months and 19 days).

 

The respondent argued that since the notice of appeal is only directed at the whole of the court order a quo and not against the judgment a quo; and as there is no order for damages, the appellant cannot raise the issue of reasonableness of the award of ‘occupational rent’ on appeal. The respondent further argued that her case was never one of damages – she submitted that her case is one of the vindication of property rights pursuant to Art 16 of the Namibian Constitution. This being the first time respondent raises the constitutional claim in the matter.

 

Held that, whereas there is a difference in meaning between a judgment and an order – this is irrelevant in the present matter. Normally, actions or trial matters are concluded by judgments, whereas applications are concluded by orders. This is however not cast in stone. What is clear is that one cannot appeal against the reasons of a judgment or order only.

 

Held that, in the present matter there is no doubt as to the ground of attack against the judgment and the respondent’s attempt to obfuscate by a submission based on pedantic literal semantics cannot be accepted.

 

Held further that, respondent’s constitutional claim should have been raised in the court a quo and canvassed there - it cannot be raised as a legal point in this court as this would be prejudicial to the appellant.

 

Held that, this court agrees with appellant’s submission that whatever respondent may choose to call her claim as framed, it is a claim for the wrongful holding over of properties subsequent to the termination of a lease as envisaged in the common law.

 

Held that, the stance taken by the respondent in her replication that ‘it is not for the defendant [appellant] to determine what is reasonable and what is not reasonable rent for the plaintiff’s [respondent’s] properties. Plaintiff is in law entitled to demand any amount she deems reasonable as rent amount for her properties has no legal foundation. In the context of the claim against appellant, it is for the court to determine on the evidence presented to it what damages the holding over by the appellant caused the respondent where the parties could not agree.

 

Held that, to determine a reasonable and market related rental of a property, a court is not confined to expert evidence only (ie of an estate agent) as is submitted by the appellant. A court can consider other factors (ie compare evidence of landlords or tenants in the area, or in the context of a farm, evidence from other lessors or lessees of farms being used for livestock farming). As is evident from the pleadings and stance taken on behalf of the respondent, no evidence was presented as to what a reasonable or market related rental would be for the rental of her farms at the time. Appellant’s evidence was that, considering that it has been farming on rental properties since 1995, the rental of N$8500 per month was high but fair, and that of N$20 000 per month would be impossible to make a profit over the term of the proposed lease.

 

It is thus held that, it was not open to the appellant to contend that N$8500 per month would not have constituted a fair and reasonable rental for the property – the court a quo should have, based on the evidence presented to it, found that a reasonable ‘occupational rent’ would have been N$8500 per month and not N$20 000 per month. The appeal should succeed to this extent only.

 

Appellant filed an application for condonation and reinstatement of appeal for the non-compliance of the Supreme Court Rules – due to the late filling of its record of appeal (ie rule 8), appellant’s appeal lapsed. The decisions of this court with regard to condonation and reinstatement applications are trite law. This court has an unfettered broad discretion in considering whether there is an acceptable explanation for the non-compliance and secondly, whether there are prospects on the merits of the intended appeal. In this case, appellant’s non-compliance with the rules of the court cannot be stated to be flagrant or so detrimental to the respondent that the reinstatement application had to be dismissed without considering the prospects of success on appeal, despite the fact that the explanation for the non-compliance with the rules of this court was not entirely satisfactory. The court thus grants condonation and reinstates the appeal.

 

The appeal succeeds to the extent of the issue of ‘occupational rent’ in the amount of N$8500 per month, calculated from 1 May 2013 to 19 November 2020 (ie seven years, six months and 19 days).

Coram
Damaseb DCJ
Hoff JA
Frank AJA

Coat of Arms.bmp

NOT REPORTABLE

 

CASE NO: SA 22/2020

 

 

IN THE SUPREME COURT OF NAMIBIA

 

 

In the matter between:

 

 

KRUCOR INVESTMENT HOLDINGS (PTY) LTD (Trading as Professional Farming)

 

Appellant

 

 

and

 

 

 

ESTIE KWENANI (Born EBERENZ)

Respondent

 

 

 

Coram:          DAMASEB DCJ, HOFF JA and FRANK AJA

 

Heard:           8 June 2022

 

Delivered:     13 July 2022

 

 

 

Summary:     The appellant and the respondent in this appeal were parties to a lease agreement of an agricultural land. The duration of the agreement was nearly ten years, from 1 May 2003 to 30 April 2013. In terms of clause 1.2 of the lease agreement, if the lessee (appellant) elects to renew the lease agreement for a further period, the rent amount payable by the lessee shall be re-negotiated. The appellant through its managing director (Mr Krüger) approached the respondent prior to the initial lease period running out and in terms of clause 1.2 of the lease agreement indicated to the respondent that it intended to exercise its options to renew the lease agreement – the appellant also suggested a new rental amount. The respondent rejected the suggested rental amount and indicated that she would accept an amount of N$102 000 per annum which translated into N$8500 per month. The appellant thought this amount was exorbitant, unreasonable and not acceptable – although it was considering it and would later accept it. In the interim, the respondent withdrew the offer of N$102 000 rental per annum and placed the appellant on terms to either accept or reject a rental of N$20 000 per month by a certain date. Appellant rejected the latter offer as being outlandish and accused the respondent of negotiating in bad faith – claimed that as the previous offer was withdrawn in bad faith, it was still open to it to accept that offer which is what it purported to do through a letter by its Mr Krüger to the respondent. Appellant remained in occupation of the farm land and tendered rental of N$8500 per month which was refused by the respondent. Consequently, the respondent instituted an action against the appellant in the High Court for the eviction of the appellant from the premises, and an order ‘for payment of N$20 000 per month for occupational rent computed from May 2013’ up to the date the appellant vacates her farm. The court a quo found in favour of the respondent, granting her the orders sought with interest in respect of the occupational rent. The appellant noted an appeal against the court a quo’s order.

 

When the matter was argued on appeal, the appellant had already vacated the leased property on 19 November 2020. It withdrew its argument against the court a quo’s eviction order and the finding that the renewal clause did not constitute a valid option. The only issue this Court was seized with was the order of occupational rent – should the court find for the respondent, appellant would be liable for the payment of ‘occupational rent’ and such rent is to be calculated from 1 May 2013 to 19 November 2020 (ie seven years, six months and 19 days).

 

The respondent argued that since the notice of appeal is only directed at the whole of the court order a quo and not against the judgment a quo; and as there is no order for damages, the appellant cannot raise the issue of reasonableness of the award of ‘occupational rent’ on appeal. The respondent further argued that her case was never one of damages – she submitted that her case is one of the vindication of property rights pursuant to Art 16 of the Namibian Constitution. This being the first time respondent raises the constitutional claim in the matter.

 

Held that, whereas there is a difference in meaning between a judgment and an order – this is irrelevant in the present matter. Normally, actions or trial matters are concluded by judgments, whereas applications are concluded by orders. This is however not cast in stone. What is clear is that one cannot appeal against the reasons of a judgment or order only.

 

Held that, in the present matter there is no doubt as to the ground of attack against the judgment and the respondent’s attempt to obfuscate by a submission based on pedantic literal semantics cannot be accepted.

 

Held further that, respondent’s constitutional claim should have been raised in the court a quo and canvassed there - it cannot be raised as a legal point in this court as this would be prejudicial to the appellant.

 

Held that, this court agrees with appellant’s submission that whatever respondent may choose to call her claim as framed, it is a claim for the wrongful holding over of properties subsequent to the termination of a lease as envisaged in the common law.

 

Held that, the stance taken by the respondent in her replication that ‘it is not for the defendant [appellant] to determine what is reasonable and what is not reasonable rent for the plaintiff’s [respondent’s] properties. Plaintiff is in law entitled to demand any amount she deems reasonable as rent amount for her properties has no legal foundation. In the context of the claim against appellant, it is for the court to determine on the evidence presented to it what damages the holding over by the appellant caused the respondent where the parties could not agree.

 

Held that, to determine a reasonable and market related rental of a property, a court is not confined to expert evidence only (ie of an estate agent) as is submitted by the appellant. A court can consider other factors (ie compare evidence of landlords or tenants in the area, or in the context of a farm, evidence from other lessors or lessees of farms being used for livestock farming). As is evident from the pleadings and stance taken on behalf of the respondent, no evidence was presented as to what a reasonable or market related rental would be for the rental of her farms at the time. Appellant’s evidence was that, considering that it has been farming on rental properties since 1995, the rental of N$8500 per month was high but fair, and that of N$20 000 per month would be impossible to make a profit over the term of the proposed lease.

 

It is thus held that, it was not open to the appellant to contend that N$8500 per month would not have constituted a fair and reasonable rental for the property – the court a quo should have, based on the evidence presented to it, found that a reasonable ‘occupational rent’ would have been N$8500 per month and not N$20 000 per month. The appeal should succeed to this extent only.

 

Appellant filed an application for condonation and reinstatement of appeal for the non-compliance of the Supreme Court Rules – due to the late filling of its record of appeal (ie rule 8), appellant’s appeal lapsed. The decisions of this court with regard to condonation and reinstatement applications are trite law. This court has an unfettered broad discretion in considering whether there is an acceptable explanation for the non-compliance and secondly, whether there are prospects on the merits of the intended appeal. In this case, appellant’s non-compliance with the rules of the court cannot be stated to be flagrant or so detrimental to the respondent that the reinstatement application had to be dismissed without considering the prospects of success on appeal, despite the fact that the explanation for the non-compliance with the rules of this court was not entirely satisfactory. The court thus grants condonation and reinstates the appeal.

 

The appeal succeeds to the extent of the issue of ‘occupational rent’ in the amount of N$8500 per month, calculated from 1 May 2013 to 19 November 2020 (ie seven years, six months and 19 days).

____________________________________________________________________

 

APPEAL JUDGMENT

____________________________________________________________________

 

 

FRANK AJA (DAMASEB DCJ and HOFF JA concurring):

Introduction

[1]        The appellant hired agricultural land from the respondent pursuant to a written lease agreement entered into between them. The duration of the lease was for nearly ten years, namely from 1 May 2003 to 30 April 2013. The lease agreement also contains the following provision (I quote only the relevant part):

           

            ‘. . . The LESSEE has the option to renew the lease . . . for a further period of 9 years and 11 months on the same conditions as contained in this agreement, . . .

 

            1.         . . .

           

                        1.1       . . .

                       

1.2       In the event of the LESSEE’S election to renew this lease for a further period after expiration of the initial period, the rent amount payable by the LESSEE in respect of such further period  shall be renegotiated.’

 

[2]        The appellant through its managing director (Mr Krüger) approached the respondent prior to the initial period running out and with reference to the above provision in the lease agreement indicated to her that appellant intended to exercise its option to renew the lease and a new rental amount was suggested to respondent in this regard.

 

[3]        The rental amount offered on behalf of the appellant was rejected by the respondent who indicated that she would accept a rental of N$102 000 per annum (ie N$8500 per month). Mr Krüger indicated that in his view the rental suggested by the respondent was exorbitant and unreasonable and not acceptable to him. However sometime later he contacted the respondent still maintaining his position that her latest offer was unreasonable but suggesting that despite this he would probably have no choice but to accept it in view of his circumstances and undertook to revert to her in respect of this offer soon.

 

[4]        The respondent, in the meantime had spoken to people in the farming business, and before Mr Krüger could get back to her with his final decision in respect of the rental of N$102 000 per annum, she withdrew this offer and put him on terms to either accept or reject an offer of a rental amount of N$20 000 per month by a certain date. Mr Krüger roundly rejected this latter offer as being outlandish and accused the respondent of negotiating in bad faith and concluded that as the previous offer was withdrawn in bad faith it was still open to appellant to accept it which is what he purported to do by a letter addressed to her.

 

[5]        The appellant thus remained in occupation of the farm land and tendered the rental of N$8500 per month which the respondent refused to accept. The upshot of this was that the respondent instituted action against the appellant in the High Court for the eviction of the appellant from her premises and an order ‘for payment of N$20 000 per month for occupational rent computed from May 2013’ up to the date appellant vacates the property.

[6]        The court a quo found in favour of the respondent and granted her the orders mentioned above with interest in respect of the occupational rent.

 

[7]        The appellant noted an appeal against the whole of the ‘order a quo’. I should mention that the appellant has in the meantime vacated the leased property on               19 November 2020. This means that should appellant be liable for the payment of ‘occupational rent’ such rent is to be calculated from 1 May 2013 to 19 November 2020, ie seven years, six months and 19 days.

 

The litigation process

[8]        The respondent issued a summons to evict the appellant and to seek occupational rent during November 2013 whereafter the matter wound its way through the procedural steps so as to get it ready for trial which commenced about three years later during November 2016. The trial came to an end when closing arguments were made by the legal representatives of the parties on 22 February 2017.

 

[9]        Incredibly, the order of the court a quo only followed about three years later on 9 March 2020 with the full judgment being put on the e-justice system around 3 April 2020. As is evident from the heading to this judgment, this appeal was set down for      8 June 2020. This means it has taken the litigants about eight and a half years to have their disputes finally determined through the courts. I can only hope this is an exception to the norm, for if it is not, there is something seriously wrong with the procedures in place when it comes to litigation.

 

[10]      The above delays must be seen in the context of the evidence of the respondent to the effect that Mr Krüger threatened her that he would delay the matter while occupying the land. Mr Krüger denies he made such threats but the point is simply that such delays can be abused by the litigants so inclined if it becomes a norm.

 

[11]      Furthermore, Mr Krüger knew from the outset that he was on shaky grounds. This is so because in this jurisdiction it has been accepted since the case of Wasmuth v Jacobs[1] that ‘options’ such as the one relied upon by appellant did not constitute valid options. The fact that Mr Krüger knew of the decision of Wasmuth v Jacobs is evident from the plea of the appellant which he succinctly summarises in his application for the reinstatement of the appeal[2] as follows:

           

            ‘9.        . . .

                       

9.1       One, that the common law should be developed to the effect that the option to renew the lease is not invalid.

 

9.2       Two, that the respondent was in terms of the option to renew the lease obliged to negotiate the rental for the renewal period in good faith.

 

9.3       Three, that the respondent breached her obligation to negotiate in good faith, withdrawing her offer to lease the farms for the renewal period at a rent of N$102 000.00 per year, with the intention of frustrating the applicant’s acceptance thereof.

 

9.4       Four, that the applicant must, accordingly, be put in the position it would have occupied, if the respondent had not, in breach of her obligation to negotiate in good faith, withdraw her offer to let the farms to the applicant at the rent of N$102 000.00 per year for the renewed period of 9 years and 11 months commencing 1 May 2013 and ending 31 March 2023.’

 

[12]      On the basis of this tenuous and speculative assumption that the court would develop the common law along the lines alleged on behalf of the appellant and not on the basis of any existing right, appellant remained on the leased property for over seven years as mentioned above without making any payment to the respondent (as she refused to accept payment) until, presumably, he was able to make alternative arrangements in his own time by November 2020.

 

[13]      The inference that the appellant was playing the system to gain time is further reinforced by the fact that when heads of argument were filed on behalf of the appellant, the appeal against the eviction order and the finding that the renewal clause did not constitute a valid option was withdrawn and the only aspect left is the appeal against the order for occupational rent granted by the court a quo.

 

Occupational rent

[14]      In the grounds of appeal the award of N$20 000 per month to respondent as ‘occupational rent’ for the holding over by the appellant of the leased property after the termination of the lease is addressed as follows:

           

            ‘5.        The court a quo, in any event, erred in by implication finding that the respondent

on a balance of probabilities proved the quantum of her damages claim, because:

 

5.1       there was evidence that the rent in terms of the lease was not, or no longer, a reliable indication of the value of the use of the farm;

 

5.2       the respondent adduced no expert evidence on the value of the use of the farm.’

 

[15]      In the court a quo the ‘occupational rent’ was dealt with in one paragraph in the judgment as follows:

           

            ‘[69]     The defendant [appellant] had continued to occupy the farms without a valid lease agreement in place. Such occupation became unlawful when the parties failed to agree upon a rental amount for a further period. The plaintiff is entitled to be compensated for the occupation and use of her farms by the defendant. I am unable to find an amount which is reasonable as compensation other than the rental amount which the plaintiff had offered to the defendant. In that respect, the plaintiff is entitled to be compensated the amount she was prepared to rent the farms to the defendant, which is N$20 000.00 per month or N$240 000 per year from 1 May 2013 to date of vacation of the defendant from the said farms.’

 

[16]      The legal representative for the respondent submits in his heads of argument that as the notice of appeal is directed at the whole of the order of the court a quo and not against the judgment a quo and as there is no order for damages the appellant cannot on appeal raise the issue of the reasonableness or otherwise of the award of occupational rent. Secondly, it is submitted that the case for the respondent was never one for damages but a vindication of property rights pursuant to Art 16 of the Namibian Constitution and as there was no exception taken to her particulars of claim and the relief for ‘occupational rent’ this relief cannot now, on appeal, be limited to a reasonable occupational rent.

[17]      Both these submissions are so obviously unmeritorious that one is tempted to merely state them to be so. However, as they were raised in all seriousness I deal with them. Here it must be noted that the order of the High Court was made prior to the reasons for the judgment and the appeal was noted against ‘the whole of the order’. Once the reasons became available the grounds of appeal followed which included the ground set out above which makes it crystal clear what the basis of the attack on the occupational rent awarded is. Whereas there is a difference in meaning between a judgment and an order it is irrelevant in the present matter. As has been pointed out normally actions or trial matters are concluded by judgments whereas applications are concluded by orders. This is not cast in stone.[3] What is clear is that one cannot appeal against the reasons of a judgment or order only.[4] In the present matter there is no doubt as to the ground of attack against the judgment and an attempt to obfuscate by a submission based on pedantic literal semantics cannot be accepted.

 

[18]      The ‘occupational rent’ claimed in the particulars of claim is clearly in respect of the unlawful holding over of the leased property as it reads as follows:

           

‘16       As a result of the unlawful occupation of the premises or the aforesaid properties by the defendant after the lease agreement had lapsed and after notice to vacate the premises or the aforesaid properties had been given to defendant by the plaintiff, the defendant is liable to the defendant [plaintiff] for occupational rent in the amount of N$20 000.00 (twenty thousand) per month for the duration it has unlawfully occupied the premises.’ (sic)

[19]      It is thus abundantly clear that the ‘occupational rent’ is sought for unlawful occupation of the land without an agreement with the owner thereof. The remedy in such circumstances is stated by Lee and Honoŕe: The South African Law of Obligations[5] under the heading ‘Remedies for holding over’ as follows:

           

            ‘A lessee remaining in possession after termination of the lease without the consent of the lessor is answerable in damages, which could include consequential damages, and may be ejected by order of court.’

 

The authors further refer to relief in this regard to an aggrieved lessor as follows[6] (I quote only the relevant portion):

           

            ‘If a person . . . remains in possession after the determination of a lease, . . . , without any agreement, . . . , for the payment of rent, he may be ordered to pay damages for the use and occupation of the land, such damages being calculated on the basis of the rental value of the premises for the period of the unlawful occupation.’

 

[20]      The legal practitioner acting on behalf of the appellant referred to numerous cases where the principle set out by Lee and Honoŕe above has been endorsed. It is not necessary to cite them as it is clear that the principles set out in Lee and Honoŕe reflect the legal position correctly.

 

[21]      In the plea filed on behalf of the appellant, it is quite clear that the reasonableness of an occupation rent of N$20 000 per month was in dispute. In fact, in the context of re-negotiating the rental, it is stated to be so unreasonable as to lead to an inference that the respondent was not negotiating in good faith. On more than one occasion in the plea, it is averred that an occupational rental of N$20 000 per month or N$240 000 per year ‘does not represent a reasonable rental and/or market related rent’ or in the negative that such rent is ‘unreasonable and not market related’. As I shall indicate below this issue was thus also raised and canvassed in evidence.

 

[22]      On what basis the submission on behalf of the respondent can be made that this was and is not a damages claim escapes me. The rental was not agreed upon and hence the only basis for the claim is for the unlawful and continuous use of the land. Such claim by its nature is a damages claim. Even if one accepts for the moment the spin by the legal representative for the respondent that this is part and parcel of a constitutional claim to the property, it makes no difference to the outcome as the respondent had to prove the extent to which the wrongful deprivation of her farm caused her damages.

 

[23]      I must point out that in the particulars of claim no reliance whatsoever is placed on Art 16 (right to own property) or Art 25(4) (monetary award for breaches of constitutional rights). The Constitution or any of its Articles is not referred to at all. In fact nowhere in the pleadings is the Constitution or any of its provisions expressly referred to on behalf of the respondent. The appellant (defendant a quo) was thus not alerted at all that this was a claim based on the Constitution (if indeed this was the intention). Furthermore there is simply nothing in the claim even remotely suggesting a claim based on the Constitution. If reliance was placed on Art 25(4) it was for the respondent (plaintiff a quo) to have made allegations to substantiate an award in excess of that available under the common law.[7] Needless to say there were no such averments. This belated attempt by the legal representative for the respondent to rely on the cause of action never pleaded thus cannot be considered in the determination of this appeal.

 

[24]      It was for respondent to establish in the court a quo why the common law claim was not sufficient in the circumstances. In this context it is important to remember that there is authority for the stance that a lessor ‘who willingly or contumaciously holds over after the expiration of his tenancy is regarded in our law as a malicious trespasser, from whom exemplary damages may be recovered.’[8] Despite making serious allegations against the appellant in respect of his conduct no exemplary damages is sought save for a special costs order. The circumstances in the present matter is such that the constitutional issue should have been raised in the court a quo and canvassed there and it cannot be raised as a legal point in this court as this would be prejudicial to the appellant.

 

[25]      I thus agree with the submission made by the legal representative of appellant that whatever respondent may choose to call her claim as framed it is a claim for the wrongful holding over of properties subsequent to the termination of a lease as envisaged in the common law.

 

[26]      It also follows that the stance taken on behalf of the respondent in her replication ‘that it is not for the defendant to determine what is reasonable and what is not reasonable rent for the plaintiff’s properties. Plaintiff is in law entitled to demand any amount she deems reasonable as rent amount for her properties’ has no legal foundation. In the context of the claim against appellant it is for the court to determine what damages the holding over by the appellant caused the respondent. On the pleadings this was the rental she lost as a result and she thus had the onus to establish what the rental value of the premises would have been but for the holding over by the appellant. It was not open to either party to simply decide what amounted to a reasonable rental. This was for the court to decide on evidence presented to it where the parties could not agree on this.

 

Reasonable and market related rental

[27]      As is evident from the pleadings and stance taken on behalf of the respondent, no evidence at all was presented as to what a reasonable or market related rental would be for the rental of her farms at the time. As pleaded on her behalf, she was ‘entitled in law to demand any amount she deems reasonable’ and this is how she came to demand a rental of N$20 000 per month during negotiations. Her evidence thus did not even begin to establish a reasonable or market related rental for her property.

 

[28]      It is thus necessary to establish whether the evidence of Mr Krüger (on behalf of the appellant) can be of any assistance in this regard because, if not, a finding of absolution from the instance in respect of the claim for ‘occupational rent’ is inevitable. According to the submission on behalf of the appellant it is not possible to determine a reasonable rent for the property without hearing expert evidence. I do not agree. This may be the norm but it is probably because this is usually the most expedient way to deal with the issue. A party obtains the evidence of, say, an estate agent operating in the area concerned, who deals with rental properties and who thus has experience of the letting of properties in that area, and who, through his or her records would be able to establish a reasonable rental in such area. It should be stressed that such experts normally express their views in terms of a range of rentals and that rentals for similar properties are hardly exactly the same. They are in a range depending on certain other factors such as distances from workplace, schools, shopping areas and public transport. In respect of farms other factors may be at play but distance from services, access, roads, rainfall and consistency thereof, extent of water and fences and condition of infrastructure will all be relevant. Thus, experts normally conclude that a rental within certain parameters and within certain areas would all be reasonable and then focus on the individual property involved to justify a rental within such parameters in respect of the specific property and then expresses an opinion as to what is considered reasonable in the circumstances. This is not however the only manner to establish a reasonable rental amount. Evidence of other landlords or tenants in the area may be called to give evidence of their existing contracts and the court can be asked to determine the reasonable rental by way of comparison, ie the usual amount charged for the type of property in the area. Alternatively in the context of the property being farms to be used for livestock farming evidence from other lessors or lessees of farms could indicate the rental of farms relating to the number of animals allowed and existing infrastructure and a court will be entitled to on such basis, establish a reasonable rental provided it has sufficient information to work with.

[29]      Mr Krüger testified that the request for a rental amount of N$20 000 per month was ridiculously high and not market related. He was of the view that the previous offer of N$8500 was still on the high side but within bounds and he intended to pay this amount but respondent refused it. On his calculation, based on the carrying capacity of the leased property, he would operate at a loss for the first three years if he had to pay a rental of N$8500 per month but would thereafter move into a profitable situation for the remainder of the lease. On the rental of N$20 000 per month it would be impossible to make a profit over the term of the proposed lease. He emphasised that he had been farming on rental property since 1995 on different farms and also for a year on a neighbouring farm. He eventually concluded that whereas the rental of N$8500 per month was ‘a higher amount but it is fair, it is ascertainable, it is tenable, and it is manageable’. On a question from the legal representative for the respondent as to for whom the rental of N$8500 per month would be a fair rental Mr Krüger responded, ‘to her and to me’. In summary Mr Krüger’s evidence in a nutshell was that the rental was in the high range but fair. He clearly regarded it as being within a reasonable range and fair in the circumstances he found himself. If it was unreasonable he would not have stated that it was fair and would not have fought tooth and nail, up to the highest court in the country for more than seven years to enforce it or tendered it. It is clear that he would have entered into a new lease agreement for a rental of N$8500 per month had he been granted the opportunity. In these circumstances it is not open for him to contend that N$8500 per month would not have constituted a fair and reasonable rental for the property.

 

[30]      It thus follows that the court a quo, based on the evidence presented to it, should have found that a reasonable ‘occupational rent’ would have been N$8500 per month and not N$20 000 per month and that the appeal should succeed to this extent only.

 

Applications

[31]      Because of the late filing of the record the intended appeal lapsed. The applicant thus brought an application to condone its non-compliances with the rules of this court and for the reinstatement of the appeal.

 

[32]      In response, the respondent not only opposed the application for the reinstatement of the appeal but also launched an application seeking security from the appellant in respect of such application pursuant to s 11 of the Companies Act 28 of 2004. This application for security was withdrawn when the appellant withdrew its appeal against the orders of the court a quo evicting it from the farms and declaring the option invalid which was done simultaneously with the filing of the heads of argument on behalf of the appellant.

 

[33]      In the heads of argument on behalf of the respondent it is pointed out that the record was not complete as the replication filed on behalf of the respondent was not included in the record. This triggered a further condonation application to have the replication added to the record about two days prior to the hearing of the matter.

 

[34]      As far as the withdrawn application for security is concerned the appellant sought a costs order in its favour as no costs were tendered with its withdrawal. This was not contested on behalf of the respondent and I shall grant such an order.

 

[35]      As far as the other two applications are concerned I shall deal with them together as they both are relevant to the reinstatement of the lapsed appeal.

 

[36]      I do not intend to rehash the plethora of decisions by this court with regard to the applications seeking condonation for the non-compliance with the rules of this court. Suffice to say it has now become trite law that this court has an unfettered discretion in this regard and that in the exercise of this discretion two broad considerations normally come into play, namely, whether there is an acceptable explanation for the non-compliance and secondly whether there are prospects on the merits of the intended appeal.[9] I say normally because depending on the circumstances other factors, such as the public interest in determining a specific issue or a respondent’s interest to finality in the matter may also come into play and may sway the court in a certain direction. In essence, the court must on the facts and circumstances decide whether it would be in the interests of justice to reinstate an appeal.[10]

 

[37]      In this matter it must be borne in mind that factors outside the control of the parties are mainly responsible for the long delay in the matter being heard. First, it took about three years for the judgment to be handed down subsequent to the closing argument at the trial. Second, the lockdown as a result of the Covid-19 pandemic during which certain of the rules of this court relating to timelines were suspended also caused a further delay.

 

[38]      The notice of appeal and subsequent grounds of appeal were filed timeously so respondent was aware of the fact that an appeal would follow. The legal representative of the appellant engaged the official transcribers to prepare the record after the judgment had been handed down. A problem occurred as the relevant material to do their work could not be traced at the High Court. When the legal representative of the appellant alerted the respondent’s legal representative about this problem he was reminded that the evidence had been transcribed about three years previously for the purpose of the closing arguments. According to the legal representative of the appellant he had forgotten about this, probably due to the effluxion of time. He however, when he realised the portion of the record was with the instructed counsel in Swakopmund obtained copies of these transcriptions from the legal representatives of respondent and thereafter pressurised the transcribers to finalise the record as the bulk of the work had already been done.

 

[39]      In the above circumstances certain other rules of this court were not adhered to such as approaching the respondent’s legal representatives to discuss which portions of the record would be necessary for the purposes of the appeal, to timeously seek the respondent’s permission for the late filing of the record and, of course, the replication was not filed as part of the record as it should have been which led to a further condonation application as already mentioned.

 

[40]      The record (without the replication) was filed two months late. It is clear that the late filing of the (incomplete) record had little or no effect on the time scale for the hearing of the appeal. Furthermore, the other non-compliances in terms of their effect were at worst minimal. This is so because as the notice of appeal attacks the whole order there was simply virtually nothing that could be left out of the record of the proceedings a quo and a discussion between the parties would not have reduced the burden of this court in any meaningful manner. Whereas it is correct that the respondent’s legal representative should have been approached for an extension of the deadline to file the record, appellant’s stance in these proceedings is such that it is improbable that such consent to an extension of the deadline would have been forthcoming. As pointed out above, the replication should have formed part of the record but as is apparent from the finding on the merits above, that, in respect of the only issue in this appeal namely what rental to use for determining the holding over damages, the replication was of no assistance to the respondent.

 

[41]      In the circumstances the non-compliance with the rules of the court cannot be stated to be flagrant or so detrimental to the respondent that the reinstatement application had to be dismissed without considering the prospects of success on appeal. As is evident from what is stated above, from the perspective of the reinstatement application, it made out a case for good prospects of success and the appeal will thus be reinstated despite the fact that the explanation for the non-compliances with the rules of this court was not entirely satisfactory.

 

[42]      As far as the costs of this reinstatement application are concerned, the appellant sought an indulgence from the court and the opposition thereto was not unreasonable. However as the bulk of the time spent on this application revolved around the prospects of success on the merits I am of the view that it would be fair that these costs should be regarded as costs in the appeal.

 

Costs

[43]      The appellant resisted the claims in the court a quo on the basis that it had entered into a new lease agreement for a rental of N$8500 per month. The main focus of the trial in that court dealt with this aspect. On failing on the main issue the question relating to the damages for holding over arose. At the hearing on appeal, the appeal was limited to the amount (if any) of the holding over damages and in this limited context the appeal succeeds.

 

[44]      In my view even if the court a quo had awarded holding over damages in the amount of N$8500 per month as it should have on the evidence placed before it, that would not have made any difference to the adverse costs order granted against the appellant. This is so because its defence to the claim was in substance rejected. It follows that the respondent was and still is substantially successful when it comes to the court a quo and the relief sought in that court. In these circumstances there is no need to interfere with the costs order granted a quo.

[45]      As far as the costs on appeal are concerned it would in my view be appropriate to make no order as to costs. This is so because the appeal was at a very late stage limited to one aspect only. Had this been done at the outset and had the rules of this court been complied with, the record would have been reduced to only those aspects relevant to the one point that had to be dealt with on appeal. I have already referred to the tenuous and speculative nature of appellant’s defence and one cannot escape the inference that it used the notice of appeal with its wide scope in place for as long as it was convenient for it to do so, so as to stay in possession of the farm without having to pay any rental (due to the respondent refusing to accept the tender in this regard) in the meantime in respect of such occupation. The inference is reinforced by the attitude adopted in this court, after fighting tooth and nail for about seven years up to the highest court in the country to enforce a rental agreement with a rental of N$8500 per month, make a u-turn in argument in this court to submit such rental was not reasonable. From the perspective of the respondent it unsuccessfully defended the judgment of the court a quo with regard to the only aspect left for decision in this court and hence also cannot claim costs.

 

Conclusion

[46]      It follows that the appeal succeeds to the extent set out above. As far as the claim for ‘occupational rent’ is concerned I pointed out above that the appellant unlawfully occupied the farms for a period of seven years, six months and 19 days. This means that at a rental value of N$8500 per month the respondent suffered damages in the total amount of N$770 383,33. As appellant tendered the amount on a monthly basis interest on the amount will only arise as from the date of this judgment.

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

           

(a)        The costs of the withdrawn application for security for costs is to be borne by the respondent.

 

(b)        The application for the condonation of non-compliance with the rules of this court and the reinstatement of the appeal is granted.

 

(c)        The appeal is reinstated and succeeds to the extent that paragraphs 5 and 6 of the order of the court a quo which relates to the occupational rent are set aside. No order is made in respect of the costs on appeal.

 

(d)        The appellant is ordered to pay the respondent N$770 383,33 as holding over damages in respect of the period from 1 May 2013 to 19 November 2020 during which period it unlawfully occupied the respondent’s property.

 

(e)        The appellant is ordered to pay the respondent interest a tempore morae on the aforesaid amount from the date of this judgment to date of payment thereof.

 

 

 

 

 

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FRANK AJA

 

 

 

 

 

 

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DAMASEB DCJ

 

 

 

 

 

 

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HOFF JA

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

APPELLANT:

H Steyn

 

Instructed by Krüger, Van Vuuren & Co.

 

 

 

 

RESPONDENT:

D Khama

 

Instructed by K Kamwi Law Chambers

 

 

[1] Wasmuth v Jacobs 1987 (3) SA 629 (SWA) at 633G-634E.

[2] I deal with this application later in this judgment.

[3] Dickinson & another v Fisher’s Executors 1914 AD 424 at 427 and Holland v Deysel 1970 (1) SA 90 (A) at 93A-B.

[4] Western Johannesburg Rent Board & another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A) and Molteno Bros v South African Railways 1936 AD 408.

[5] R W Lee and T Honoŕe The South African Law of Obligations 2 ed (1978) para 336.

[6] Para 318.

[7] Minister of Safety and Security & others v Mahupelo 2019 (2) NR 308 (SC).

[8] Nicholson v Myburgh (1897) 14 SC 384 at 387 where in addition to rental for one month’s holding over a further amount of nearly two months rental as exemplary damages were upheld.

[9] Witvlei Meat (Pty) Ltd v Agricultural Bank of Namibia 2014 (2) NR 464 (SC) para 28.

[10] Rally for Democracy and Progress & others v Electoral Commission for Namibia & others 2013 (3) NR 664 (SC) para 68.