BV Investment Six Hundred and Nine CC V Kamati (I 1074-2013) 2016 NAHCMD 216 (22 July 2016)

1

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

JUDGMENT

CASE NO. I 1074/2013

In the matter between:

B. V. INVESTMENT SIX HUNDRED AND NINE CC PLAINTIFF

and

LETTY KAMATI 1ST DEFENDANT

NEW LEAF INVESTMENT (PTY) LTD 2ND DEFENDANT

Neutral citation: BV Investment Six Hundred and Nine CC v Kamati (I 1074-2013) [2016] NAHCMD 216 (22 July 2016)

CORAM:MASUKU J:

Heard:16, 17, 18, and 20 November 2015

Delivered: 22 July 2016

FLYNOTE:LAW OF CONTRACT – written lease agreement – oral parts alleged – whether oral parts of agreements alleged are efficacious – the parole evidence rule – whether applicable in the case - exceptions of application of parole evidence rule considered – propriety of termination of lease agreement – whether the plaintiff suffered damages as a result. LAW OF EVIDENCE – proper approach where the evidence adduced is disparate and irreconcilable.

SUMMARY:The Plaintiff sued the defendants for breach of a purported written agreement, in that the latter prematurely terminated the said agreement and failed to pay rent for the months after termination running to the end of the contract. The sum sued for also included a penalty amount as per the agreement as well for water consumption.

Held – that evidence adduced by the defendant showed that an oral agreement had also been entered into by the parties.

Held further- that the parole evidence rule would be inapplicable in the instant case, in light of the finding that an oral agreement had been established by the defendants.

Held further- that to come to a conclusion on the disputed issues, a court must make findings on the credibility of the various factual witnesses; their reliability; and the probabilities.

Held further – that where parties intend to enter into a written agreement, such would only be valid and create obligations on the parties’ once in writing and signed by both parties.

Held further – that the exterior of the premises as presented by the plaintiff were not fit for the business purposes intended by the defendant’s and hence the latter was justified in terminating the purported agreement as they did.

In conclusion, court found that the parole evidence rule is in applicable to the instant case for the reason that the parties’ also concluded an oral agreement.

ORDER

1. The Plaintiff’s claim is dismissed.
2. The Plaintiff is ordered to pay the costs of suit.

JUDGMENT

MASUKU J:,

Introduction

[1]The plaintiff is a Close Corporation duly registered in terms of the Close Corporation Laws of this Republic and conducts its main business from 146 Bach Street, Windhoek West.

[2]The 1st defendant is an adult female business woman who is involved in a number of business ventures, with her given address as 124 John Meinert Street, Windhoek. The 2nddefendant is a company duly incorporated in terms of the Company Laws of this Republic, sharing the same address as the 2st defendant.

[3]On 27 June 2012, the plaintiff, duly represented by Mr. Maurice Zide (Mr. Zide), and the 1st defendant, duly representing the 2nd defendant, entered into a written agreement of lease in terms of which the plaintiff let and the defendants hired premises known as 146 Bach Street, Windhoek West. Erf No. 6091, consisting of 3 bedrooms, 2 bathrooms and other amenities. The lease was to run for a period of 12 months.

The claim and defence

[4]The plaintiff sued the defendant for the payment of an amount of N$ 40 672.55 being damages allegedly incurred by the plaintiff as a result of the defendants’ termination of the agreement in question before the time that was agreed upon in the lease agreement and also allegedly because the defendants failed to pay rental due from the month of November 2012 and also for the reason that they allegedly failed to pay a penalty amount stipulated in clause 4 (b) of the agreement and water consumption to mention but some of the issues in contention.

[5]In defence, the defendants averred that before the conclusion of the agreement, the parties had agreed that the plaintiff would cause renovations to be made on the premises which and which renovations would also upgrade the exterior of the house by no later than the end of July 2012. The defendants further alleged that they were forced to vacate the premises as a result of the plaintiff failing to address the condition of the exterior of the house despite numerous undertakings. They accordingly deny that they are liable to the plaintiff in the amount claimed or at all.

Issues for resolution

[6]In terms of the pre-trial order filed by the parties and endorsed by the court, the legal issues for determination were the following:

(a)Whether the defendants were entitled to rely on an oral agreement concluded before or at the time of the conclusion of the written agreement;

(b) Whether the 2nd defendant breached the lease agreement by vacating the premises before the expiry of the lease period;

(c) Did the plaintiff suffer damages as a result of the alleged breach by the 2nd defendant?

(d) Whether the plaintiff is entitled to payment of the rent from November 2012 to February 2013 in the amount of N$35 500; and

(e) Whether the defendant is liable for penalties incurred as a result of the late rental from 8 November 2012 to 28 February 2013 in the amount of N$ 3 955.

The evidence

[7]Each of the parties called one witness, being the ones who represented the legal personae in the conclusion of the written agreement, namely Mr. Zide and Ms. Kamati. I shall commence with the evidence led on behalf of the plaintiff after which, an analysis of the evidence led will ensue, culminating in findings on matters of fact as the judgment draws to a close.

[8]In his witness’ statement, Mr. Zide stated that on 12 February 2012, he left Namibia for the United States and asked Mr. John Mbambi to find a tenant for the property in question. On 27 June 2012, the lease agreement with the 1st defendant was then entered into on the terms stated earlier and that the defendants took occupation of the main house in the middle of July 2012.

[9]Mr. Zide then gave a detailed account of his interactions with the 1st defendant related to the renovations of the exterior of the house, including that of the perimeter wall fence. He had informed the defendants that the works on the perimeter wall would be finished by the end of July 2012 by which time he would be back in Namibia. The renovations were not done after Mr. Zide returned on 15 July and he wrote an email to the 1st defendant informing her that the renovations which were being done by Mr. Shigwedha would be continuing on the walls. Mr. Shigwedha then resigned on 31 August 2012 with the works still not completed. The resignation and the efforts to find a replacement for him were conveyed to the 1st defendant by email dated 8 September 2012.

[10]By email dated 29 September 2012, Mr. Zide informed the 1st defendant that he had hoped to replace the gate on Bach Street with a new one and would also install a Hansa Motor into the gate by November 2012. In October, 2012, a Mr. Van Rensberg of Sebies Welding was to replace the gate. On 16 October 2012, the 1st defendant informed Mr. Zide that she could not use the gate to the main house for the intended purpose because there was always rubbish around the yard and leaves all over the place; there was no maintenance; the property was going through constant unending renovations; holes were being dug in the property and there were trenches and that the gate on Bach Street fell on her. These were the reasons she gave for terminating the lease agreement and stated that her email dated 16 October 2012 which conveyed these complaints would serve as notice of her termination.

[11]Mr. Zide stated that he had informed the 1st defendant of the problems with the gate on Bach Street and that it was not working properly and had provided her with a remote control for the gate on Alexander Street. It was his evidence that he attempted to address all the complaints laid by the 1st defendant by email dated 19 October 2012 to which she did not respond. The following day, the 1st defendant notified them that she was vacating the property. I will not detail all the contents of the statement.

[12]In cross-examination, Mr. Zide agreed that the claim was for a period of 4 months i.e. for November, December 2012 and for January and February 2013. It was his evidence that he obtained a tenant after the defendants vacated the property as from 1 March 2013. He denied that there were any oral parts of the agreement as alleged by the defendants. He also testified that the property was in a suitable state when the defendants took occupation of it.

[13]Pictures were shown to Mr. Zide of the property when the defendants took occupation of the property and he accepted that they depicted a correct picture of the premises then. He also conceded some pictures taken after occupation even close to the time the defendants moved out. In particular, he conceded that a picture at p. 64[1](Exh. ‘4’) was taken four days before the defendants vacated the property. It was his evidence that the property in question was in order as three other tenants on the property did not complain about its state, thus pouring scorn as it were on the defendants’ reasons for terminating the agreement.

[14]Mr. Zide admitted that he was aware that the 1st defendant used the property as an office. He further admitted that he got to know of the 1st defendant’s concerns from the emails that she sent but denied that they were accurate e.g. that there were trenches being dug within the yard as part of the renovations. Later in his evidence, Mr. Zide stated that these were not renovations but maintenance work that was being carried on in the yard. It was put to him that the defendants had complained about the state of the yard on a number of occasions verbally and even threatened to move out of the property because of the state of the grounds and surrounds. He disagreed with this.

[15]It was also put to Mr. Zide that the defendants could not utilize the property for the purpose they had rented it for because of the poor condition the exterior was in and he denied this. It was put to him that the agreement had not even been signed on behalf of the lessor and he admitted this. He denied that he did not finish the renovations and stated that had he been desirous of renovating the wall, he would have included this aspect in the lease agreement itself. No questions were asked in re-examination and the plaintiff closed its case.

[16]At this juncture, the defendants opened their case and the 1st defendant testified. It was her evidence that they had moved into the property in question in August and vacated same on 3 December 2012. She identified the lease agreement and stated that she had signed same on the 2nd defendant’s behalf. It was also her evidence that the property was rented because she needed an office from which she would run her businesses, namely, a construction business and a deco shop, as well as an estate agency, to mention but a few.

[17]Ms. Kamati also informed the court that the contract between the parties was partly oral and partly written. The first part of the oral agreement that she testified about was with regard to the usage of the property. In the agreement, she testified, the property was to be used for residential purposes but she informed the plaintiff that she needed same for office space and that she communicated this to Mr. Mbambi by email at page 9 of the defendants’ discovery bundle.

[18]It was also her evidence that they also agreed with the plaintiff regarding the renovations to be done on the property both with Mr. Mbambi and Mr. Zide, the latter of whom she spoke to telephonically. This, she testified, Mr. Zide confirmed by email dated 27 June 2012 and referred in particular to the second last paragraph thereof.

[19]Ms. Kamati further testified that upon taking occupation of the property, she discovered that they could not enter the property through the gate but had to use a pedestrian gate on Bach Street and this caused her to write an email to Mr. Zide in protest. Furthermore, she testified, she could not use the vehicle to enter the property because she had no keys to the gates and that most of the gates were in any event broken. In view of all this, she decided to terminate the agreement in October 2012 as the agreement that the property would be attended to and would be put in a good condition to suit the needs of her business was not honoured by the plaintiff.

[20]It was her further evidence that another difficulty she had was that she could not park her vehicle inside the yard as there were no keys to the gates. When the plaintiff did give her the key to the Bach entrance, it fell on her and she had to continue parking outside the yard. She testified further that the plaintiff then dug a trench between his house and one of her neighbours and this left a pile of sand which meant she could not drive into the property. The other entrance also had some trenches dug and she could not access the property as the Mr. Zide’s vehicle was always parked on the driveway.

[21]Ms. Kamati also testified that in September/October 2012, she came to the property and when she opened the gate, it came down hard on her and she walked with a limp for a period of about two weeks. Furthermore, the property was located opposite to a bar and where violence was constant feature, resulting in one point in 3 people being killed. This she testified, heightened her fears as she felt very unsafe and had, in those perilous circumstances, to park her vehicle outside the property which militated against her safety, particularly as a woman who sometimes worked long hours demanded by the exigencies of her business. She testified further that she held numerous meetings with Mr. Zide regarding all these complaints and that his refrain was that he would attend to these matters. According to her, he was not a man of truth as he would always make promises that were never fulfilled.

[22]As a parting shot in her evidence-in-chief, Ms. Kamati told the court that she could not use the property as she wanted or had intended. Her business, she continued, hinged on the image that she portrays. She testified that clients would not have come to transact business with her in those terrible conditions as the environment was not conducive and the clients would not have confidence in her ability to deliver because of the tattered image the premises portrayed. The state of the premises, she further testified, left her bruised and in anguish as she made payment for her rentals on time but the plaintiff never honoured its word from the moment they moved into the premises.

[23]It was also her evidence that seeing the plaintiff not honouring their undertakings, she put Mr. Zide on terms and threatened to move out. This situation led to her interviewing some of the plaintiff’s workers to find out what the problem might be. She eventually told Mr. Zide that if the renovations are not finalised by the end of August 2012, the defendants would then move out of the premises. He again promised to make good on the issues but never did, she testified further.

[24]In denouement, Ms. Kamati denied that she owed the plaintiff any money at all. It was her evidence that it was the plaintiff that had breached the agreement. Her talking to Mr. Zide on many occasions had not brought any fruit and she felt compelled in the circumstances to terminate the agreement, having extended her patience beyond its elastic limits, so to speak.

[25]In cross-examination, it was pointed out to Ms. Kamati that there was nothing in the lease agreement that placed a burden on any party to carry out renovations by any date and she agreed but also denied this, saying that the lease agreement placed a duty on the plaintiff to maintain the property. She admitted that there was no clause dealing with date for finishing renovations. Taxed on the oral part of the agreement related to renovations, it was her evidence that she and Mr. Zide agreed before the signature of the lease agreement that the plaintiff would renovate the premises and he undertook to finish same by end of July 2012.

[26]She testified on being taxed by Mr. Marcus for the plaintiff that further terms of the oral agreement related to the plaintiff installing a remote controlled gate with an answering machine; the cleaning of the yard, keys to the gates and a code for the alarm. It was suggested to the 2nddefendant that Mr. Zide would return to Namibia and then attend to the finishing of the wall and this Ms. Kamati denied stating that Mr. Zide had engaged a Mr. Solomon to do the wall and that its finishing had nothing to do with Mr. Zide’s presence.