- September 6, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Order:
- The application for absolution from the instance is refused.
- The defendant is ordered to pay the plaintiff’s costs relating to the application for absolution from the instance.
- The matter is postponed to 6 November 2023 and 7 November 2023 at 10h00 for continuation of trial.
Reasons for orders:
Claasen J:
‘This is an application by the defendant for absolution from the instance, made after the plaintiff closed his case. The plaintiff sued the defendant essentially seeking to recover payment of N$480 000 and N$120 000 respectively, in addition to interest and costs for an alleged breach of contract. It was common cause that the parties concluded three different contracts.
Four witnesses testified on behalf of the plaintiff. Mr Nuunyango’s evidence reveals that in terms of the first agreement of sale, the parties agreed that the plaintiff would purchase farm Eqwe (the farm) in the Otavi district from the defendant for a purchase price of N$7.5 million. The plaintiff had to pay the transfer costs and apply for a loan to fund the transaction, whereas the defendant had the obligation to obtain a certificate of waiver from the Ministry of Land Reform. About two weeks thereafter the parties signed another agreement, again a contract of sale, referred to as the second written agreement. This time the purchase price of the farm was N$5.5 million which had to be paid towards the defendant’s loan at Agribank. The agreement stipulated that the plaintiff would be responsible for the transfer cost and had to secure the necessary approval of a loan. The agreement was silent about who had the duty to obtain the certificate of waiver.
[5] Surprisingly, later in the day, on 29 April 2019, the parties signed a third agreement. In terms of the third agreement, it was agreed that the plaintiff would lease the farm for the amount of N$480 000 for a fixed period of 19 months from 30 August 2019. Additionally, the parties also entered into an oral agreement wherein the plaintiff advanced N$ 120 000 directly to the defendant, which amount would be deductible from the purchase price. Incidentally, the third agreement contained clauses under the heading ‘Special conditions’ to the effect that, in the event that no sale is concluded, the lease agreement shall be for a rental amount of N$25 000 per month as from August 2019 for a period of 19 months and that the lessee shall be entitled to enforce his right for the recovery of the N$ 480 000 in the event that the sale agreement between the parties does not succeed. Furthermore, the lessee shall in addition to the rental amount, pay N$1.5 million within 12 months of the date of registration of the transfer if the sale is finalized.
[10] During the course of the trial, it became apparent that the claim of N$ 120,000 was no longer disputed. The only issue in dispute is the date from which the interest is to run as it appeared from cross-examination by the legal practitioner that the contention was that the letter of demand was not received by the defendant. As far as the opposition to the other claim was concerned the assertion was that the plaintiff was not entitled to payment of N$480 000 because that amount was paid for the lease of the farm, and that the defendant was responsible for the collapse of the sale as he did not furnish an approval for a loan from a bank.
[13] In turning to the law on absolution, in general, absolution at the close of the plaintiff’s case is not readily granted. In Stier and Another v Henke SA 53/2008 [2012] NASC 2 (03 April 2012) it was stated at para 4 that :
‘At 92F-G Harms JA in Gordon Lloyd Page & Associates v Rivera and Another 2001(1) SA 88 referred to the formulation of the test to be applied by a trial court when absolution is applied at the end of an appellant’s case as appears in Claude Neon Lights (SA) Ltd v Daniel 1976(4) SA 403 (A) at 409G-H:
“. . . (W)hen absolution from the instance is sought at the close of plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff.”
[14] It is trite that the court will not concern itself with issues of credibility at this stage, except in cases where the evidence tendered by the plaintiff is so poor or so improbable to the extent that no court would place any reliance upon it. Furthermore, where the plaintiff’s evidence gives rise to more than one plausible inference, any one of which is in his or her favour in the sense of supporting his or her cause of action and is destructive of the version of the defence, absolution is an inappropriate remedy.
[15] From the evidence presented at this juncture, it is clear that the parties entered into agreements and that the plaintiff parted with N$ 480,000 as a result of the agreement(s). That was not disputed by the defendant, and it calls for an explanation as to his understanding of which of the contracts he received payment of N$48 000 and why he is not liable to return all or any portion of it. Through the course of the trial, it became clear that liability for the N$ 120,000 was no longer in dispute. However, given that the receipt of the demand letter appears to be in dispute the date of interest will depend on that. I am also constrained to agree with counsel for the plaintiff insofar as he argued that, had it been the defence that the transactions were arranged in such a fashion in order to defraud the tax authorities that ought to have been pleaded and made its way into the evidence.
[16] In emphasizing the test at this stage of the proceedings, it is my view that the application for absolution from the instance must be refused with costs.’