Komsberg dispute referred to trial

The dispute between the liquidator of Farm Komsberg, an export grape farm in Namibia’s far South, and leases on portions of the farm which both recently partially succeeded in court, has been ordered to move for trial.
Acting High Court Judge Collins Parker held that the proceedings for the rectification of the ‘oral or tacit lease agreement’ should be by action and not by application.
Komsberg is in liquidation and the liquidator Alwyn Petrus van Straten has asked for the eviction of Desert Fruit and all its employees from the Komsberg properties which belong to Komsberg Agri Operations.
Van Straten however entered the fray after an ‘oral or tacit lease agreement, which is the target of rectification application, had allegedly already been concluded.
He asked the court that the application by Desert Fruit and Desertkom, who lease part of Farm Komsberg and who applied for the rectification of lease agreement on the property prior to its liquidation, be dismissed with costs.
Parker in his ruling this week refused the dismissal request and referred the matter for trial. He also ordered the Desert Fruit and Desertkom to jointly and severally pay Van Straten’s costs.
Van Straten had asked for costs because the two respondents knew that material factual disputes existed, to the extent that the proceedings should not have been instituted.
According to the documents, Van Straten said he did not know what led to and how the parties entered into the oral lease agreement, which allegedly came into effect on 1 June 2012. The only available evidence to that effect would be that presented by Johannes Hendrik van der Walt, director of Desert Fruit.
Parker further in his ruling said that there is no written agreement placed before the court for it to consider rectification. He added that when disputes have arisen and would give rise to a wide variety of substantial factual enquiries, motion proceedings are not appropriate.
He also said that there are applications relevant to the current one and that they are still pending.
The acting judge further stressed that the dismissal of the rectification application may have an effect on the main application and the amendment application in the current proceedings.
“It will bring the disposal of all three applications in sight. These are significant circumstances which have persuaded the court not to grant the dismissal relief, but to order the parties to trial.
He said it is not sufficiently clear in any of the applications what the exact size is of the portion of land leased according to the oral agreement.
Van Straten’s application asked the court to dismiss the rectification application, refer the matter to trial and for the referral of certain issues to evidence.
In their matter, Desert Fruit and Desertkom applied for the rectification of the oral agreement which forms the subject matter of their main application and further, they applied for an amendment under case number A38/2014 w to be referred to trial.
They alternatively requested that these two issued be referred for oral evidence. The oral evidence will determine the question as to exactly when the lease agreement on the property, oral or otherwise was entered into and what the terms were. They allege the agreement was concluded prior to Komsberg’s liquidation.
Furthermore, the parties say oral evidence will also determine how the amount of the tender made for the period 20 July 2012 to 28 February 2014 was calculated and compounded and whether or not rent was paid and why, if paid or set-off, it was never reflected in Desertkom’s financial statements.
It will also throw light on the basis for the claim for alleged expenses alluded to in the main application and why this is not reflected in Desertkom’s financial statements.
The oral evidence will further determine whether the two respondents are acting with the intent to defraud creditors. It will also determine whether any lease agreement was in existence prior to the liquidation.
Also the exact manner in which the alleged lease property was identified and by whom must also be determine.
Acting Judge Collins Parker referred both matters for trial.

FRED GOEIEMAN