Not Reportable

CASE NO.: A 19/2011

IN THE HIGH COURT OF NAMIBIA In the matter between:

DAWID HENDRIK DE WAAL MARIA MAGDALENA DE WAAL

First Applicant Second Applicant

and

ADRIAAN LOUW

Respondent

CORAM: Heard on: Delivered on:

PARKER J 2011 June 15 2011 June 23

_________________________________________________________________

JUDGMENT
_________________________________________________________________ PARKER J:

[1]

In this matter the applicants have applied for an order in

terms set out in the notice of motion.

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[2]

The applicants seek the relief on the basis of a lease agreement which is

annexed to the Founding Affidavit and marked Annexure A together with a sworn translation marked B. What is relevant in the present proceedings are the two clauses that provide for ways by which the lease may be terminated, namely, in clause 15.2 and 20.3.

[3]

The respondent has raised the defence of lis pendens.

And the

respondent contends that the matter cannot be properly decided on affidavits and should be dismissed. It is the respondents averment that application procedure may not be used but action procedure must be used and that is what, according to the respondent, the applicants in fact did by issuing combined summons on 13 December 2010 under Case No. I 4227/10 in the High Court of Namibia.

[4]

The respondents contention was taken up vigorously in refrain by the

respondents counsel, Mr. Van Zyl. With the greatest deference, Mr. Van Zyl misses the point. The lease agreement provides for two diametrically opposed termination provisions. The first provision, that is, in clause 15.1, comes into play, as Mr. Mouton, counsel for the applicant, correctly submitted, where breach of contract is alleged and subsequent cancellation. The other provision, that is, in clause 20.3, concerns voluntary cancellation which applied upon either party giving to the other the required and proper notice. It seems to me clear that cause of action and what the party concerned must prove in an action proceedings such as is under Case No. 4227/10 in order to succeed are grounded in breach of contract and subsequent cancellation in terms of clause 15.1 of the lease agreement. But the cause of action and what the party concerned must prove in order to succeed in an application such as the present one under case No. A19/2011 are grounded in whether the agreement was validly cancelled by

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agreement and/or notice in terms of clause 20.3 of the lease agreement. Thus, what the applicant must prove in order to succeed in the present application is grounded in the interpretation and application of clause 20.3; that is to say, whether the lease agreement was validly cancelled by proper notice.

[5]

It follows reasonably and inexorably that this application and the action

proceedings are not based on the same cause of action. That being the case, the respondents point in limine cannot succeed: it does not satisfy all the requisites of lis alibi pendens; all of which must exist together (See Harms, Amlers Presedents of Pleadings, 7th edn: (pp 264-4, and the cases there cited.)

[6]

But that is not the end of the matter. Mr. Van Zyl has a second bow to his

string. Counsel argued that by instituting the action proceedings, the applicants waived their right to bring the present application. With respect, Mr. Van Zyl is palpably wrong. For it to accept that the applicants have waived their right under the lease, this Court must be satisfied that the respondent has proved the waiver. Besides, the defence of waiver must be specifically pleaded; and the decision of waiver must have been conveyed to the respondent. (See Amlers Precedent of Pleadings, ibid.: p 397-398, and the cases there cited). I am satisfied that these requirements have not been fulfilled in these proceedings. The defence therefore fails.

[7]

As I see it, on the papers, it is not the case of the respondent that proper

notice was not given by the applicants in terms of clause 20.3 of the lease agreement. The respondents case is encapsulated in the following; whatever that means

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It is therefore quite clear from the provisions of clause 20 of the said Agreement of Lease that the application (applicant) may only give notice if the jurisdictional facts have been present which under the current state of affairs is not application.

[8]

In my view, the only current state of affairs is that the applicant gave

proper notice in terms of clause 20.3 of the lease agreement but the respondent remains in occupation of the subject matter of the lease agreement. As I have mentioned previously, the giving of notice is a voluntary course that is open to the parties to the lease agreement. The applicants took that course which they were entitled to take, subject only to the proper notice being given. In this regard, I find that proper notice was given, as I have said before. The respondent relies rather on defences of lis pendens and waiver to deny the applicants their entitlement to exercise their contractual right under the lease agreement; and I have previously rejected those defences. The present application is therefore properly before the Court and this Court is able to determine the application on the papers, as I have done.

[9]

In the result, the application must succeed.

Whereupon, I make the

following order:

1.

The cancellation of the Agreement of Lease entered into by the parties on 1 March 2009 is hereby confirmed.

2.

The respondent must vacate the Farm Welbedacht situated in the district of Mariental on or before 28 June 2011.

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3.

The respondent must pay the applicants costs, which costs include costs occasioned by the employment of one instructing counsel and one instructed counsel.

___________________ PARKER J

COUNSEL ON BEHALF OF THE APPLICANTS: Adv. C Mouton

Instructed by:

Du Plessis Inc.

COUNSEL ON BEHALF OF THE RESPONDENT: Adv. C Van Zyl

Instructed by:

Chris Brandt Attorneys