Everhardus Petrus Faculyn Gous v Erreicht Farming CC (SA 89/2022) [2025] NASC 17 (13 June 2025)

# Everhardus Petrus Faculyn Gous v Erreicht Farming CC (SA 89/2022) [2025] NASC 17 (13 June 2025) [ __](https://api.whatsapp.com/send?text=https://namiblii.org/akn/na/judgment/nasc/2025/17/eng@2025-06-13) [ __](https://twitter.com/intent/tweet?text=https://namiblii.org/akn/na/judgment/nasc/2025/17/eng@2025-06-13) [ __](https://www.facebook.com/sharer/sharer.php?u=https://namiblii.org/akn/na/judgment/nasc/2025/17/eng@2025-06-13) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://namiblii.org/akn/na/judgment/nasc/2025/17/eng@2025-06-13) [ __](mailto:?subject=Take a look at this document from NamibLII: Everhardus Petrus Faculyn Gous v Erreicht Farming …&body=https://namiblii.org/akn/na/judgment/nasc/2025/17/eng@2025-06-13) [ Download DOCX (107.1 KB) ](/akn/na/judgment/nasc/2025/17/eng@2025-06-13/source) Toggle dropdown * [Download PDF](/akn/na/judgment/nasc/2025/17/eng@2025-06-13/source.pdf) Report a problem __ * Share * [ Download DOCX (107.1 KB) ](/akn/na/judgment/nasc/2025/17/eng@2025-06-13/source) * [Download PDF](/akn/na/judgment/nasc/2025/17/eng@2025-06-13/source.pdf) * * * * * Report a problem __ ##### Everhardus Petrus Faculyn Gous v Erreicht Farming CC (SA 89/2022) [2025] NASC 17 (13 June 2025) Copy citation * __Document detail * __Related documents Citation Everhardus Petrus Faculyn Gous v Erreicht Farming CC (SA 89/2022) [2025] NASC 17 (13 June 2025) Copy Media Neutral Citation [2025] NASC 17 Copy Hearing date 14 April 2025 Court [Supreme Court](/judgments/NASC/) Case number SA 89/2022 Judges [Shivute CJ](/judgments/all/?judges=Shivute%20CJ), [Frank AJA](/judgments/all/?judges=Frank%20AJA), [Prinsloo AJA](/judgments/all/?judges=Prinsloo%20AJA) Judgment date 13 June 2025 Language English Summary Read full summary * * * Skip to document content **REPORTABLE** CASE NO: SA 89/2022 **IN THE SUPREME COURT OF NAMIBIA** In the matter between: **EVERHARDUS PETRUS FACULYN GOUS** | **Appellant** ---|--- | and | | **ERREICHT FARMING CC** | **Respondent** **Coram:** SHIVUTE CJ, FRANK AJA and PRINSLOO AJA **Heard: 14 April 2025** **Delivered: 13 June 2025** **Summary:** The appellant entered into a written lease agreement and an oral livestock agreement in 2009, leasing farm Erreicht No. 143 from the respondent and hiring livestock from Mr L P van der Westhuizen (the sole member of the respondent) and his wife, Ms A M van der Westhuizen. The written lease included exclusive rights to farm and hunt on the land, with specific terms including a clause that 500 Springbok and 30 Oryx were to be returned at the lease’s end. It also included a stocking ratio, repair obligations, and rental of N$25 000 per month. The appellant allowed Mr van der Westhuizen to return to the farm in 2014 with 39 donated Simmentaler cattle, using 2000 hectares of the farm for grazing and part of the homestead. This arrangement continued for years, during which Mr van der Westhuizen's livestock increased. Due to drought and grazing pressure, the appellant’s access to grazing diminished. He paid rental up to January 2018 whereafter he failed to make further payments. The rent was reduced by agreement in October 2018, but the appellant still made no payments. He vacated the farm in June 2019, leaving behind the cattle hired from Mr and Mrs van der Westhuizen. The respondent then sued for arrear rental of N$488 750, and the appellant counterclaimed for damages and sought reinstatement of the lease. The High Court dismissed the appellant’s defences and counterclaims, awarding the respondent N$365 000 in arrear rental. The court found that the appellant had consented to Mr van der Westhuizen’s occupation, waived his rights to undisturbed possession, and could not withhold rent or claim full abatement. The appeal against this finding was dismissed. However, the Supreme Court partially upheld the appeal in respect of the appellant’s counterclaims. It held that the hunting agreement constituted a _mutuum_ – a loan for consumption – rendering the appellant the owner of the game. He had exclusive hunting rights, and Mr van der Westhuizen’s unauthorised hunting of 144 Oryx during the lease period constituted unlawful appropriation. Based on admitted evidence, the appellant was awarded N$144 840 in damages for the Oryx. The appellant was also partially successful in his claim for alternative grazing costs. The Supreme Court awarded him N$23 240 for relocating 100 cattle during the drought prior to the lawful termination of the lease in mid-October 2019. The Court adjusted the costs orders in the High Court, ordering that the respondent retained costs in convention, and the appellant was awarded costs for the successful portion of his counterclaim. The court did not grant an order as to costs in the appeal as the appeal against the claim in convention failed but the appeal against the dismissal of the counterclaim succeeded. **APPEAL JUDGMENT** FRANK AJA (SHIVUTE CJ and PRINSLOO AJA concurring): _Introduction_ 1. In August 2009 the appellant Mr Gous (Gous) entered into three agreements. Two of these agreements were recorded in a written ‘Agreement of Lease’. These two agreements were concluded by Gous with the respondent. A further oral agreement was entered into with Mr L P van der Westhuizen and his wife Ms A M van der Westhuizen. In the evidence Mr Van der Westhuizen was referred to as ‘LP’ and his wife as ‘Ansie’. For the sake of convenience, I shall refer to these two Van der Westhuizens as they were in the evidence. LP was the sole member of the respondent at all relevant times to the events I describe in this judgment. 2. The main subject matter covered in the written lease agreement was the terms and conditions in respect of a lease of farm Erreicht No. 143, situated in the district of Windhoek, by Mr Gous from the respondent. I deal below in more detail with the relevant terms and conditions applying to the lease. 3. The written lease agreement also contains clauses relating to the hunting Gous would be entitled to on the farm. Thus under the heading ‘Use of Farm’ it is recorded that Gous would be entitled to use it for farming and hunting activities. The matter is further clarified in Clause 15 under the heading ‘Hunting’ as follows: ‘The Lessee shall be entitled to hunt on the property and for such purpose take out hunting licences in his own name or in the name of the lessor, as the authorities may require from time to time, but always subject thereto that the lessee will have to return the game listed in clause 2.1.5 on termination of this lease . . . .’ Clause 2.1.5 lists the game that had to be returned on the termination of the lease as 500 Springbok and 30 Oryx. 4. In terms of an oral agreement between Gous, on the one hand, and LP and Ansie on the other hand it was agreed that Gous would ‘hire’ their livestock for N$15 000 per month on the basis that he would return animals of the same type and same quantities to them on the termination of this agreement. The initial livestock included cattle and sheep, but during the course of the parties’ dealings I refer to below, it was agreed that the sheep could be exchanged for cattle and this was done whereafter the subject matter of this agreement solely related to cattle. 5. In terms of the written agreement Gous hired the whole farm Erreicht together with all the improvements (including the homestead) on it. The size of the farm is stated to be 12 348 hectares. In terms of livestock farming it is stipulated that Gous was not to stock the farm in respect of large, fully grown livestock (cattle) in excess of one head of livestock per 15 hectares and in respect of one fully grown small stock (sheep or goat) in excess of one head of such livestock per three hectares. 6. Gous had to maintain and repair the infrastructure at his own expense during the currency of the agreement and breaches by either of the parties in respect of the agreement had to be addressed by a 30-day written notice to the party in breach to remedy such breach failing which the innocent party would be entitled to all the remedies at his/its disposal, including cancellation. 7. The written agreement contains a clause stating that it is the whole agreement between the parties and was not entered into on the basis of warranties, representations made or opinions expressed which do not form part of its terms and conditions and that variations or consensual cancellations would not be of any force or effect unless it is signed by both parties. 8. The written agreement also makes provision for the remission of rent in the event of the total or partial loss or destruction of grazing or where the ‘game being unfit for normal commercial hunting purposes’. 9. Finally, the duration of the lease was for the initial period of five years from 1 July 2009 to 30 June 2014 ‘whereafter the agreement shall endure for an indefinite period’ on condition that either party could terminate on one year’s notice. 10. The monthly ‘rental’ in respect of the farm and the game is stipulated to be N$25 000 per month excluding VAT. 11. The agreement was acted upon and Gous started with farming operations using the livestock of LP and Ansie which he ‘hired’ from them and also brought his own cattle onto the farm. LP and Ansie vacated the farm and moved to a farm owned by her father where LP worked for his father-in-law. Shortly before the end of the initial five year period stipulated in their agreement and around June 2014, LP and his mother returned unannounced to the farm with 39 Simmentaler cattle which Ansie’s father had donated to her and LP. He asked Gous whether he could return and use about 2000 hectares surrounding the homestead to graze the donated cattle. Gous testified that he was faced with a dilemma as the lease did not allow LP to return with or without cattle. He thought it would be a temporary arrangement until LP could find alternative accommodation. He agreed that he would use a separate section of the homestead with its own bathroom facilities and LP could use the rest of the homestead as well as the mentioned 2000 hectares for the grazing of the donated livestock. 12. The position turned out not to be temporary at all and LP continued to occupy part of the homestead and the 2000 hectares for years and the donated animals through the normal breeding cycles increased substantially to over 100 head when the crucial events relating to the termination of the lease agreement occurred. In fact, during 2017 and because of a drought, LP encroached further on the farm in respect of the grazing of his animals and on the evidence restricted the animals of Gous to about half of the farm. 13. Gous paid the rental up to January 2018 whereafter he failed to make further payments. It is clear from the evidence that at this stage the area where the farm is situated was in the grips of a serious drought. In October 2018 the parties agreed to reduce the rental in respect of the farm to N$15 000 per month and in respect of the cattle of LP and Ansie to N$10 000 per month. As pointed out by the court _a quo_ these reductions were probably premised on the clause relating to the remission of rental where the grazing is affected by drought. 14. Despite the agreement to reduce the rent, Gous paid no further rental and remained in occupation of the farm until June 2019 when he removed his last cattle from the farm. It needs to be stated that when Gous removed his last cattle from the farm, he left the livestock he ‘hired’ from LP and Ansie behind in the nature and quantities agreed. As there was no claim in respect of arrear rental relating to this agreement one can accept that this agreement was honoured in full. It is thus only the ‘rental’ in respect of the farm and the game that remained in issue. 15. During July 2019, the respondent through its lawyers demanded arrear rental in the amount of N$488 750 from Gous. The letter of demand alleges that the manner in which Gous vacated the farm without any notice to the respondent amounted to the repudiation of the agreement which the respondent accepted. The lawyers nevertheless, and with reservation of respondent’s right to rely on repudiation, in a letter dated 16 September 2019 cancelled the agreement on 30 days’ notice. 16. During November 2019 the respondent instituted action against Gous for the alleged arrear rental of N$488 750. 17. Gous in his plea averred that the respondent did not comply with its obligations in that it did not give Gous undisturbed possession as LP used part of the property (‘homestead and 2000 hectares’); that through the grazing by LP of the donated cattle on the property Gous was deprived of grazing; and that LP as the sole member of the respondent conducted extensive hunting operations on the farm which rendered the property unfit for ‘normal hunting purposes’. 18. Gous also instituted a counterclaim, in essence based on the alleged non-performance of its obligations by the respondent, where he advanced seven counterclaims as follows: ‘(a) In respect of the occupation of the homestead an amount of N$5000 per month adding up to N$225 000; (b) In respect of grazing by LP of 100 cattle (on average) on the property at the rate of N$100 per head per month adding up N$520 000; (c) In respect of grazing by the respondent of 100 sheep (on average) on the property at the rate of N$10 per head of sheep per month adding up N$45 000; (d) The costs of the removal of 100 cattle to another farm as a result of grazing activities by the respondent amounting to N$54 000; (e) The costs to lease alternative grazing for 100 relocated cattle at the rate of N$100 per head per month for 15 months, namely an amount of N$150 000; (f) For losses as a result of the wrongful hunting and shooting by LP on behalf of the respondent of 400 Oryx and 500 Springbok valued at N$3500 per Oryx and N$700 per Springbok totalling N$1 750 000; (g) For the eviction of the respondent and its member (LP) from the farm and restoring the farm to Gous so as to continue with the written agreement.’ 19. The court _a_ _quo_ in its judgment dismissed the defences of Gous as well as his counterclaims and granted judgment to the respondent (plaintiff _a quo_) in respect of the arrear rental, taking into account the deduction of rental from October 2018. The amounts in total in respect of arrear rental awarded to the respondent amounted to N$365 000. 20. The gist of the judgment by the court _a quo_ is evident from the following three paras of the judgment of that court which read as follows: ‘[17] It is apparent from the facts of this case that insofar as the homestead is concerned, the defendant accepted and agreed to the plaintiff utilizing the major section of the homestead and availed roughly 2 000 hectares of the farm for the benefit of the plaintiff to graze livestock. It is apparent firstly that the defendant accepted and agreed to what he now claims was only partial performance on the part of the plaintiff. Secondly, even if there was only partial performance, the defendant would have been entitled to a proportionate reduction of his obligations. It did not entitle him to withhold his entire performance in terms of the agreement. It follows in my view that the purported reliance on the exception as a defence to the plaintiff’s claim for the rental which became due, must fail. The same applies to the allegation relating to the hunting of game on the farm. Admittedly, the lease agreement entitled the defendant to hunt on the farm. The right thus conferred was not exclusive and the allegations in the papers that it was, finds no basis in the agreement or any of the facts of the matter. Nothing contained in the agreement granted the defendant the sole and exclusive right to hunt game on the farm. [18] That leaves for consideration as far as a defence to the claim is concerned the issue of the plaintiff grazing cattle on the farm over and above what was agreed upon between the parties. In my view, it is apparent from a consideration of the evidence as a whole that the defendant claims that the farming operations conducted by the defendant became so impeded that he was entitled to withhold all and any payment which became due. If it was his case that there was a partial impediment of his farming operations which would entitle him to a reduction of his obligations, that was for the defendant to plead and prove what the nature of the impediment was, its extent, and to what extent his obligation should be reduced. Nothing to that effect was tendered in evidence or pleaded for that matter. The defendant in paragraph 8.4 of his plea, makes the bare allegation that the defendant became entitled to a remission of the rental payable, until such time as he was granted undisturbed possession. No attempt was made to plead and establish the amount by which the rental payable should be reduced. . . . [21] For the reasons already appearing earlier in this judgment, the claims must fail. In addition to that there is no acceptable evidence to substantiate the amounts claimed by the defendant. No expert testimony was tendered to establish the reasonableness or otherwise of the amounts claimed by the defendant. There is insufficient evidence upon which it is possible to make any assessment of the value of the claims. The counterclaims are likewise dismissed.’ 21. This appeal lies against the whole of the judgment and orders in respect of the claim in convention and the counterclaim. _Appeal against claim in convention_ 22. It is submitted on behalf of the appellant that the court _a quo_ erred when it accepted in evidence that an agreement was reached between LP and Gous that the former could use the main portion of the homestead and 2000 hectares for the grazing of the donated cattle (and eventually their offspring). 23. The basis of this submission is the fact that the agreement only makes provision for a written variation of the agreement accompanied by the signature of both parties. As mentioned, LP returned to the farm in June 2014 when the agreement relating to him occupying a portion of the homestead and using about 2000 hectares for grazing was entered into. This is not disputed by Gous who simply stated that he thought it would be a short term arrangement. He nevertheless allowed LP to act on this agreement and, in fact, on the evidence even repaid LP for the costs to effect repairs to the homestead which is stated as one of his duties in the agreement. Thereafter Gous continued to pay the full monthly rental until January 2018 - a period of about three and a half years without any complaint. During this period and even thereafter he gave LP no notice whatsoever to restore the possession forgone to him. In October 2018 when a remission or abatement of rent was agreed to, the issue of LP’s occupation of this part of the rental property was not raised. One can infer that the reduced rental in October 2018 took the possession of LP in consideration. It is also telling that Gous only in his counterclaim seeks to exercise his rights of full occupation of the agreement. 24. As alluded to earlier, Gous testified that he faced a dilemma when LP turned up at the homestead with the donated cattle and his mother, as he could either tell them to leave the farm in circumstances where they had no alternative accommodation available or out of reasons of pity allow them and the livestock access to the homestead and the farm on the assumption that it would be a temporary situation. He however, well-knowing that he could at any time invoke the provisions of the agreement, did not do so until the filing of the counterclaim in which he, among others, sought the eviction of the respondent from the homestead and the said 2000 hectares. 25. I am thus in agreement with the submissions on behalf of the respondent, that Gous waived his accrued rights in respect of the alleged occupation of the property by the respondent when he took no steps for years to terminate his possession when he knew all along he could do so in terms of the agreement as he sought to do in the counterclaim. He thus clearly did not waive his reliance to rely on the contractual provisions relating to what he could occupy but he waived his rights in this regard to evict LP (the respondent) from the affected 2000 hectares area. It is clear that any reasonable person in the position of LP would have not vacated that portion of the property without a further notice from Gous. The latter thus did not exercise his accrued right to evict LP from the homestead and the 2000 hectares and hence waived these rights.1 26. The position is summarised as follows in _Thompson v Scholtz_ :2 ‘Where a lessee is deprived of or disturbed in the use or enjoyment of leased property to which he is entitled in terms of the lease, either in whole or in part, he can in appropriate circumstances be relieved of the obligation to pay rental, either in whole or in part; the court may abate the rental due by him _pro rata_ to his own reduced enjoyment of the _merx_. This is true not only where the interference with the lessee’s enjoyment of the leased property is the result of _vis major or casas fortuitus_ but also where it is due to the lessor’s breach of contract e.g. because the leased property is not fit for the purpose for which it was leased or, as in this case, because the performance rendered by the lessor is incomplete or partial. . . . The lessee would be entirely absolved from the obligation to pay rental if he were deprived of or did not receive any usage whatsoever. That would simply be a manifestation of the _exceptio_ , more particularly of the first proposition in _BK Tooling (cf Fourie NO en 'n Ander v Potgietersusse Stadsraad_ [1987 (2) SA 921](https://www.saflii.org/cgi-bin/LawCite?cit=1987%20%282%29%20SA%20921) (A)).’ 27. Whereas the court _a quo_ did not deal with the issue raised in detail, it is clear from what is stated above that the occupation by LP of the homestead and the 2000 hectares could not be used to justify refusal to pay the stipulated rental or for that matter to seek damages in respect of such occupation in the counterclaim prior to the launching of the counterclaim. As also pointed out by the court _a quo_ , as Gous remained in possession of a substantial portion of the land and did not rely on the breach by the respondent to cancel the agreement, he would have been entitled to a pro rata remission of the rental and not a full remission thereof. 28. An attack is made against the court _a quo_ for not making an order for remission of the rental in view of the fact that it was a drought, exacerbated by the use of the respondent through LP of the farm for grazing, that competed with the cattle of Gous and which forced Gous to move the cattle from the farm to the extent that he could only use about 6500 hectares immediately prior to removing his cattle from the farm. 29. This criticism is not justified. It was never put to LP during cross-examination that he used much more than the 2000 hectares and about half of the farm to graze over 100 head of cattle. Although it is not seriously disputed that the original 39 Simmentaler cattle grew to over 100 it was not pertinently put that these cattle grazed outside the 2000 hectares originally agreed to. What is evident is that these cattle were never removed from the farm as a result of the drought. There is evidence by Gous that he was deprived of about half of the farm but this must have been the position when he agreed to the remission of rental to N$15 000 per month. He thus did receive an agreed rental remittal for the loss of his grazing as a result of the drought. As his evidence that he was deprived of grazing from about half the farm was also not seriously disputed, this should have been accepted. Here it must be borne in mind that 2000 hectares had been taken away for years already which left about another 6500 hectares. Furthermore, it must be taken into account that 258 head of cattle which formed part of the agreement with LP and Ansie were on the farm during the period and remained there after Gous vacated the farm with his other cattle. Apart from these cattle subject to the agreement with LP and Ansie, the evidence from Gous was that he removed 700 head of his own cattle during the middle of 2019 from the farm when he moved them to other land where he could lease grazing. On the basis of the agreement, and based on normal grazing practices, Gous was allowed one head of cattle for 15 hectares. Based on this, the cattle being part of the agreement with LP and Ansie, would take up 3870 hectares. These cattle, as already mentioned, remained on the farm and there is no basis to suggest that Gous was deprived of grazing in respect of them. 30. It is easy to determine the rental payable in respect of grazing for the animals in respect of the agreement with LP and Ansie at the time. The reduced rental took into account the fact that the homestead and the 2000 hectares were used or occupied by LP. That left 10348 hectares available to Gous in respect whereof he could conduct his farming operations. On the basis of a stocking ratio of one large stock unit per 15 hectares he could graze 690 adult head of cattle. 31. On his own version which was not really disputed, he grazed 700 head of cattle of his own and 258 head of cattle stemming from the agreement with LP and Ansie and this during the height of a crippling drought. Be that as it may, based on the agreement, the rental amounted to N$15 000 per month, or N$21,74 per head of cattle per month ie (N$15 000 ÷ 690). On the actual stocking value rate of 958 head of cattle this reduces to N$15,66 per month per head of cattle. This extremely low rental rate reflects the terrible drought at the time which was common cause between the parties and which I will deal with again when considering the counterclaims. 32. On the basis of the agreement Gous was not prevented from grazing the 258 head of cattle that would have taken up from the stocking rate agreed to 3870 hectares which would leave Gous with just over 6519 hectares for his own cattle, ie about half the farm. In the scenario where Gous’ occupation had already been reduced to only half the farm (6500 hectares) he would still have 2630 hectares available for his cattle, ie at the agreed stock rate for a further 175 animals. Gous was in terms of clause 6 of the agreement obliged to pay the rent ‘free of deduction or set off’ and the only clause which would be relevant to remission was the one relating to drought relief in respect of which a remission could be sought. It was pointed out in the judgment _a quo_ that there was no serious attempt to invoke this approach at the trial and understandably so. The extent of the remission was agreed in October 2018 and Gous did not honour this agreement. Whether and to what extent Gous was entitled to damages for not having full access to the 10348 hectares I deal with when considering his counterclaims in this regard. The point is, he was not entitled to withhold rental payments. 33. It follows that the criticism levelled at the judgment of the court _a quo_ in respect of the claim in convention is bound to fail. _Counterclaims_ 34. For the reasons set out above and below relating to the termination of the agreement, the claim of N$225 000 in respect of the wrongful occupation of a part of the homestead and the occupation of 2000 hectares of the farm was correctly dismissed. 35. The counterclaims relating to the reasonable grazing made in regard of 100 head of cattle and 100 sheep was likewise correctly dismissed as this claim relates to the cattle and sheep allegedly grazing on the 2000 hectares which forms the subject matter of the waiver that I discussed above. There is in any event no satisfactory evidence as to when and where these animals grazed elsewhere. It follows that claims 2 and 3 were correctly dismissed. The same fate follows in respect of claim 4 for the relocation of 100 head of cattle at the cost of N$54 000. These costs relate to three freight loads of cattle allocated away from the farm. Whereas an invoice for this amount was discovered and Gous testified that he paid this amount, there is no evidence to suggest that the costs can be regarded as market related and hence reasonable for the purpose of a damages claim. This claim was thus correctly dismissed by the court _a quo_. 36. This means the only claims in respect of the counterclaims that need to be considered are the claims for alternative grazing; the claim for damages in respect of hunting on invitation by or on permission of LP on the farm where Oryx and Springbok were hunted, the slaughter and sale of Oryx; and the claim to evict the respondent and to place Gous in possession of the property to continue with the agreement. It is to these claims that I now turn. _Restore the ‘Agreement of Lease’ between the parties and evict the respondent_ 37. This issue is not raised in the grounds of appeal nor is there a counter-appeal to the finding by the court _a quo_ that the written agreement between the parties was cancelled per notice dated 16 September 2019 which gave a 30 days’ notice of said cancellation resulting in the agreement being cancelled in or about mid-October 2019. 38. It needs to be stressed that once it was found by the court _a quo_ , and correctly so, that Gous was not entitled to withhold rental payable, Gous was in breach of the agreement and the respondent was entitled to cancel the agreement as was done. There were thus simply no merit in the counterclaim for the restoration of possession to Gous and to allow specific performance of the contract. _Claim for alternative grazing_ 39. Gous claims N$150 000 in respect of alternative grazing, namely N$100 per month per head of cattle in respect of 100 head of cattle for a period of 15 months. 40. On the evidence Gous removed his cattle during June 2019 because of the extreme drought at the time. According to him had the respondent not ‘locked’ him out of about 6500 hectares mentioned above he would have been able to continue grazing with 100 head of cattle on the farm. It should be borne in mind that he also left the cattle in terms of the agreement with LP and Ansie which seemingly managed to survive the drought. The first point that needs to be stressed is that the contract was legally terminated in mid-October 2019. The reasonable costs of any alternative grazing could not endure beyond the termination date of the agreement. This means the claim must be limited to the costs incurred from mid-June 2019 when he removed his cattle from the farm to mid-October 2019, when the agreement with the respondent terminated, ie a period of only four months and not 15 months. 41. In my view, it is a reasonable inference that Gous would have been able to leave a 100 head of cattle on the farm when he removed his cattle and that those cattle would have survived at least the four months up to the termination of the lease. As mentioned, Gous left the cattle relevant to his agreement with LP and Ansie and in addition, the donated cattle with their offspring which at this stage numbered over 100 were also still on the farm and if Gous was granted access to his full 10348 hectares they would have survived for the four months mentioned. Gous was thus compelled by the actions of LP on behalf of the respondent to seek alternative grazing for his 100 head of cattle. 42. Had the 100 head of cattle been left on the farm, Gous would obviously have had to pay the rent in respect of them and this amount needs to be deducted from the grazing fees he had to pay for alternative grazing as this would have to be paid in any event. The best way to establish this cost is to use the agreement as a benchmark. Because of the agreement to reduce the total rent to N$15 000 per month as a result of the drought, it is clear that what was contemplated was that Gous would keep the 258 head in terms of the agreement with LP and Ansie as well as a herd of a further 100 cattle of his own, ie a total number of 358 cattle. This amounts to N$41,90 per head per month or N$15 000 per month in total. For 100 cattle this amounts to N$4190 per month, ie N$16 760 for four months. 43. The next question is whether the costs of alternative grazing stated to be N$100 per head per month was reasonable. LP put this at a lower range as between N$70 and N$80 per head per month but conceded in a drought such as the one at hand the rental could escalate to N$150 per head per month. On the basis of this evidence by two persons who are both long time farmers, I am prepared to accept that N$100 per month per head was indeed a reasonable rate for the alternative grazing. 44. It follows that Gous had to establish a claim for alternative grazing as follows: N$100 per head amounting to N$10 000 per month for four months less N$4190 per month which he would have had to pay had the 100 head of cattle remained on the respondent’s farm. In the result, he suffered damages in the amount of N$23 240 (N$40 000 – N$16 760). _Game hunted and otherwise appropriated_ 45. The biggest counterclaim by Gous related to game hunted by LP on the farm prior to termination of the agreement. This claim is in respect of 400 Oryx and 500 Springbok which is averred to have been to the value of N$3 500 per Oryx and N$700 per Springbok, making up the total claim of N$1 750 000. 46. It is necessary to deal with the nature of the agreement in relation to the game as it appears that this was not considered by the court _a quo_ which simply dismissed the whole claim on the basis that the agreement did not stipulate that Gous had the exclusive hunting rights and that in any event no expert witness was called to establish the value of the Oryx. 47. The nature of the agreements in respect of the cattle of LP and Ansie as well as the one relating to the game of respondent were the same. That is that a specific number of animals had to be returned on the termination of the lease. In Maasdorp’s Institutes of South African Law: The Law of Contract,3 the type of agreement is described in respect of what is termed an ‘ordinary sheep lease’ as follows: ‘By this form of contract the lessor lets and delivers to the lessee a certain number of sheep of a certain specified description and ages, for a certain period and a certain rent per head, and the lessee undertakes to return to the lessor at the expiration of such period, not the same identical sheep, but a like number of sheep with the same descriptions and ages as those that were originally handed over to the lessee. In a case of this kind the contract, although called a lease, is not strictly speaking a lease, but a _mutuum_ for valuable consideration, . . . .’ 48. A _mutuum_ or a loan for consumption comes into being where some fungible property is delivered to another on the understanding that the property of the same kind, quantity and quality is to be returned. As is evident from the reference to ‘ordinary sheep leases’ fungibles include animals. The effect of a _mutuum_ is that when the property (of which the lender must be the owner) is delivered to the borrower, the latter becomes the owner of such property and the risk of the property also passes to the borrower.4 49. It thus follows that Gous became the owner of the cattle of LP and Ansie when he took possession of the farm with the said cattle on it. This follows, as matter of law, in respect of this agreement relating to the ‘rental’ of the mentioned cattle. 50. As far as the game is concerned it must be borne in mind that Gous as lessor was entitled to the possession of the whole farm. This meant that LP had to vacate the farm, which he initially did, and had to grant Gous undisturbed use of the property for, among others, livestock farming and ‘game hunting . . . for normal commercial hunting purposes’.5 51. This being so, LP (the respondent) could not enter the farm without the permission of Gous.6 If leave was unreasonably refused for, say, legitimate inspections by respondent then Gous could be compelled by a court to grant access for such purposes.7 Furthermore, what was the point in giving Gous hunting rights if LP or the respondent had it in their powers to nullify those rights by simply ensuring that there were never more than the stipulated animals. It is clear that what was intended was that 500 Springbok and 30 Oryx had to be returned on termination of the lease and it follows that what Gous was to have was the benefit from progeny of such game, ie the fruits of such game. What is more, Gous was even entitled to a remission of rental where the ‘game being unfit for normal commercial hunting purposes’. To, in such circumstances, hold that Gous did not have exclusive hunting rights is to totally ignore the nature of his rights and to give it an interpretation which makes no commercial sense at all. In my view, and based on normal principles relating to the interpretation of contracts, Gous had exclusive hunting rights in respect of the rental of the game. 52. Furthermore, if one accepts that the agreement in respect of the game constituted a _mutuum_ Gous became the owner of the property and hence his consent was required to hunt his property and he likewise had exclusive rights to the hunting while the agreement of _mutuum_ was in place. 53. The only aspect to consider is whether the respondent (lender) was the owner of the property, for if he was when possession was given to Gous, the latter became the owner as a matter of law as this follows from a _mutuum_ agreement. 54. In terms of the definition section of the Nature Conservation Ordinance (the Ordinance)8 huntable game includes Springbok and Oryx. In terms of s 29 of the Ordinance the owner of the land in excess of 1000 hectares is, subject to the provisions of the Ordinance, the owner of all huntable game of that land. The lessee of such land, unless the lease stipulates otherwise, is likewise the owner of the huntable game on such land. Section 35 of the Ordinance provides that where the owner of huntable game leases out the hunting rights on such land pursuant to a written agreement (subject to certain conditions not relevant to the present matter) ‘no other person than the lessee of such right shall have the right to hunt huntable game’ on that land. It thus follows that not only from the rental agreement related to the game which was an agreement of _mutuum_ that Gous became the owner of the game but also as lessee in terms of s 29 of the Ordinance, and in any event also had the sole exclusive right to such game pursuant to s 35 of the Ordinance. 55. It thus follows that any game (Springbok and Oryx) that was shot or appropriated by any person on the leased property without the permission of Gous prior to the termination of the lease was done so unlawfully and in conflict with Gous’ proprietary rights to those animals. 56. The claim by Gous was not premised on the game being part of an agreement of _mutuum_ but merely on the provisions of the lease agreement. The issue of the nature of the agreement arose as a result of a query in this regard from this Court. In the submissions on behalf of Gous it was attempted to bolster this counter-claim by calculating the total number of Oryx on the farm prior to the cancellation of the lease agreement as being the property of Gous. This change in stance cannot be accepted as the original claim was based on the number of Oryx hunted contrary to the exclusive use of the hunting rights granted to Gous in the lease agreement and not in respect of any remaining Oryx not hunted. Furthermore, a claim based on the _mutuum_ would have given the respondent the opportunity to tender the remaining Oryx to Gous instead of having to pay the value thereof to him. It is thus also not necessary to determine the effect of the provisions of the Ordinance as to the _mutuum_ upon the termination of the lease. _Hunting of Oryx and Springbok_ 57. During May 2019, Gous and five workers went to the farm property to gather cattle to be removed from this land. This was because Gous realised that as no rain had fallen by that Easter weekend the dire position in respect of the grazing would become worse and the drought would persist and he had to remove his cattle to relocate them to the land which he hired for this purpose. During this visit, he and his workers realised that there was an ongoing hunting expedition taking place on the leased land. According to him, when LP saw him and his pickup truck the latter immediately called off the hunt and the hunters hastily loaded the animals they had shot and removed them from the farm. LP explains his hurry to get the animals in the cool truck parked at the neighbouring farm so that the carcasses do not get affected by the heat. He says he was not worried about Gous appearing on the scene because Gous had given him permission to hunt the game due to the dire situation of the grazing. It was also put on his behalf to witnesses who accompanied the hunt and testified to his nervousness on the arrival of Gous that he was anxious because he did not obtain the necessary permits for the hunt from the authorities. 58. It is not necessary to cover the evidence as to the Oryx and Springbok hunted prior to the termination of the agreement in any great detail. This matter was also investigated by the Ministry of Environment and Tourism and LP paid quite a hefty fine for not obtaining the necessary permits and the matter was still pending in respect of some other charges at the trial. Suffice to say that it is clear that a fairly large scale operation took place as arranged by LP. The beneficiaries of this hunting were mostly members of LP’s family and extended family. It is clear that the evidence of those involved in the hunt, especially that of LP and his one neighbour must be taken with a grain of salt. They were facing criminal investigations and LP admittedly lied on more than one occasion with regard to the number of animals shot. One gains the impression from the record that these witnesses are hiding the extent of the hunting and their part therein. 59. Mr Gariseb, an employee of LP also gave evidence with regard to the hunting of Oryx and other game by LP or allowed by LP. He testified about the hunting activities during May 2019 mentioned above. It is clear that his estimates of the quantities when compared to those of the other persons involved cannot be relied upon as it seems to be exaggerated. It must also be borne in mind that he left the employ of LP after an altercation with a family member of the latter and then became an employee of Gous and he thus may have a motive to implicate LP and hence his exaggeration of the animals hunted. He gave evidence that after the hunting that occurred in May 2019, LP continued with the hunting of Oryx and other game. As far as Oryx are concerned he testified that ten Oryx a week were shot because the cooltruck of the neighbour could only accommodate this number of Oryx. Over the weekend these carcasses were transported to Windhoek either by the neighbour or LP’s daughter. This evidence is corroborated by that of Gous who testified that he on one occasion coincidentally met with the daughter when she was on her way to Windhoek with Oryx carcasses. Mr Gariseb’s evidence is not entirely clear as he stated ‘they did not actually shot (_sic_) ten every week, but it was like the total of ten must be shot between Monday and Friday per week and then they must leave for Windhoek’. In other evidence he stated that hunting took place on 8 July and 25 September 2019. In my view, what was established on the probabilities is a further 30 Oryx, ie 10 in July, August and September 2019 respectively, seeing that the contract was terminated mid-October 2019. 60. A list was prepared by LP in respect of settlement negotiations with Ansie in respect of a pending divorce litigation where he tabulated the game and the value according to him that he admittedly caused to be shot prior to the termination of the lease agreement. On that list appears one Springbok and 164 Oryx which he valued at N$186 070 in accordance with the prices received at such hunts where he sold Oryx and did not donate it. A further list was compiled by the girlfriend of LP with the cooporation of LP to verify the list referred to above and in this list a total of 144 Oryx to the value of N$101 850 was agreed upon between the two of them. The values on the list differ in that some Oryx are indicated at N$16 per kg, some at N$20 per kg and some were sold at either N$800 or N$1000 per Oryx. 61. Mr van der Merwe, a relative of LP who also conducted business in the purchase and sale of game products was invited to come and hunt on the farm by LP and during this hunt 90 Oryx were shot and removed from the farm. He testified that the price he paid at that time to acquire Oryx meat was between N$700 and N$850 per Oryx and during the hunt there were other persons present who were informed by LP that if they shot more Oryx than originally agreed with LP he would reduce the price per Oryx from N$1100 to N$1000. One Mr Louw who is the manager of a branch of the businesses of Mr van der Merwe also testified. According to him during the hunt about 64 Oryx were shot. He took 60 Oryx with him in a cool truck to the business he managed where those buck were slaughtered and he sold the meat at N$23 per kg. He said that at the time the price for such meat for the business was in the range between N$23 and N$25. In this manner he received about N$2000 per Oryx. He paid LP for such buck in cash between N$59 000 and N$60 000. Mr van der Merwe Jnr testified that he accompanied his father to the hunt referred to above. He took 30 Oryx from the hunt and paid LP N$800 per Oryx in cash. A Mr Blaauw did a game count on the farm per helicopter on 16 July 2019. Mr Blaauw is also the co-owner of a business known as Super Game Dealers and testified that during 2017 this business purchased Oryx for between N$1500 and N$1700 and sold them for between N$2500 and N$3000. 62. From the foregoing discussion it is clear that Gous was the owner of the game rented by virtue of his contract of _mutuum_ in respect of the game; that there was an intentional act of dispossession by the hunting and appropriation of the buck shot; that LP knew of the hunting rights granted to Gous and hence acted in a _mala fide_ manner; and that Gous is entitled, to damages, to the value of the buck on the date when they were hunted.9 _Quantum of damages_ 63. The court _a quo_ as a result of its finding that the hunting rights were not exclusive to Gous did not need to consider this aspect but it indicated that this could in any event, not be done because there is ‘no acceptable evidence to substantiate the amounts claimed’ and there was ‘no expert testimony rendered to establish the reasonableness or otherwise of the amounts claimed’. As indicated above, the court _a quo_ erred when it found that Gous did not have exclusive hunting rights. For the reasons set out below, I am of the view that the court _a quo_ also erred when it concluded that it could not determine the quantum in respect of the Oryx wrongfully hunted. 64. This Court dealt with the question as to when expert evidence was necessary in cases such as the present matter in two fairly recent cases namely: _Minister of Finance & another v Benson Craig (Pty) Ltd_ (SA 10/2016) [2017] NASC (26 July 2017) and _Krucor Investments Holdings (Pty) Ltd v Kwenani_ (SA 22/2020) [2022] NASC (13 July 2022). In _Benson Craig_ , Smuts JA in his judgment makes the point that where the facts are such that the value can be determined on the evidence then this should be done and there is no need for expert evidence. In this case cigarettes were unlawfully impounded by the Commissioner of Customs and Excise and the owner sought damages from the Commissioner. The latter raised the point in this Court that the value of the cigarettes was not established. The summary of the judgment reflects the position as follows: ‘The court found that there was no reason for the High Court not to accept that the value of the cigarettes at the time of the detention was the purchase price reflected in the accompanying invoice in respect of their sale to the duty free entity in Namibia. The appellants did not dispute that the sale was in the ordinary course of business and found nothing to suspect the contrary. Evidence as to the correctness of the value given for the cigarettes had also not been disputed. There was also no evidence to suggest that the cigarettes upon departure and prior to being impounded were anything other than in a condition to be sold.’ 65. In respect of the price of the cigarettes which was contended on behalf of the Commissioner did not prove the value thereof, Smuts JA dealt with the issue as follows: ‘[33] There was no reason for the High Court not to accept that the value to the respondent of the cigarettes at the time of their detention by the customs officials was the purchase price reflected in the accompanying invoice in all the circumstances of this case. As was stated in _Ranger:_ “. . . I think that it can and ought to be inferred, not as a presumption or rule of law, but purely as a fact that the agreed price for the property . . . was _prima facie_ its actual market value in its represented condition at the relevant time. That approach is not only practical and equitable, it is good common sense.” [34] It was never suggested in cross-examination to any of the respondent’s witnesses that the sale was anything other than in the ordinary course of business. In fact, Mr Van Vuuren’s cross-examination only served to confirm that, as did one of the appellant’s witnesses in his testimony. Mr Van Vuuren’s attempt to distinguish _Ranger_ on the facts (by asserting that the price in this matter was not the result of an arm’s length haggling before arriving at a price) does not avail him. It fails to take into account and appreciate the underlying ratio of _Ranger_. In _that_ matter the market value of a home was set by arm’s length negotiation before arriving at an agreed price. In this matter, there was no evidence of any need to arrive at an agreed price for cigarettes in that way. There was a course of dealing between those parties which would no doubt dispense of the need for negotiation to arrive at an agreed price. The majority in _Ranger_ referred to a similar factual inference drawn by the Court of Appeals in _McConnel_ in respect of the sale of shares in a company. After referring in some detail to the approach of the Court of Appeals in _McConnel_ the majority in _Ranger_ concluded: “That decision is cogent support for my above approach. It does not, of course, relieve the appellant of the _onus_ of proving his damages: that remains on him throughout the case. It merely means that the _prima facie_ inference of fact that the agreed price equated the value of the property as represented is not answered by mere argument on respondents' behalf that its actual value possibly exceeded the agreed price. For that argument to prevail there must be at least a reasonable possibility, founded on adduced and acceptable evidence, of such an excess; otherwise it is pure, ineffective speculation.”’ 66. As pointed out in _Krucor Investments_ , testimony by experts relating to reasonable rental (and the same would apply to reasonable value of hunted game) does not necessarily have to be proved by expert witnesses. This may, in most cases be convenient because such witnesses (eg an estate agent dealing with rental properties or a professional hunter in the business of hunting the game in question) would normally have knowledge of values in the areas of his or her work and from this will be able to testify in what range reasonable rental or prices for game would fall. These experts normally state their conclusion within a range of rentals or prices. It, however, is for the court, not the expert, to determine the applicable rental or prices in any given case. Where a court is provided with evidence as to actual rentals or prices relevant to the inquiry in respect of arm’s length transactions in the same area in respect of the same kind of game the court is entitled to determine reasonable rental, prices or values based on such evidence. Furthermore where the parties are in agreement as to such rental, prices or values or where a party has offered another in an arm’s length transaction it is not open to such parties to suggest such rates are unreasonable _vis a vis_ the other party and that such rates offered were not reasonable. 67. In _Krucor Investments_ , this Court dealt with the issue as follows: ‘[28] . . . 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 express 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.’ 68. As pointed out above, the range of rental rates testified to by LP and Gous was never placed in dispute nor was there any evidence adduced to throw doubt on these rates. These range of rates were thus agreed to by the parties. Similarly the value of the Oryx hunted were sold and was not a big issue and the evidence of the buyers as to what they paid, which obviously indicated what LP and the buyers regarded as market related prices was also not disputed. Gous disputed the value of LP on Oryx at the rate of N$16 per kg which he stated was too low. Obviously LP has no complaint in this regard if his value is taken as the benchmark for damages and this is what one should take into account. 69. In conclusion of this issue; no evidence was led as to the value of the Springbok hunted and in this regard this Court has no evidence to determine the reasonable value and cannot make any monetary award. As far as alternative grazing is concerned, I have dealt with this issue based on the law set out above in _Krucor Investments_ and _Benson Craig_ and there is no need to add anything else to that determination. I thus now turn to deal with the value of the Oryx hunted on the same basis. 70. I have indicated the number of Oryx hunted based on the evidence summarised above. Many of the Oryx were hunted on two days during a hunt conducted during May 2019, namely the day Gous coincidentally came to know of the large hunting operation. Even in respect of this hunt the hunters themselves are not clear as to the exact number of Oryx shot. The only way to establish any number with certainty for purposes of calculating a damages claim is to use the Oryx LP admitted was hunted. As I have indicated his number is probably understated, but in the absence of compelling evidence pointing to a larger number the admission of LP as to the numbers that were shot is the only quantity that was established on a balance of probabilities. As pointed out this was 144 Oryx that were valued in the total amount of N$ 101 850. According to this list he sold 3 of the Oryx for N$1280 each, ie N$3840. In evidence this amount was changed to N$5840 namely N$1947 per Oryx. This N$1947 is more than the average of Mr van der Merwe of N$1000 per Oryx. This is also more than the values given by Mr van der Merwe in respect of the Oryx at the time in the market. Then it must be remembered he and his manager Mr Berg were traders in game meat and these were the prices they bought in Oryx for the business. Where LP states lesser prices at N$800 per Oryx, I accordingly do not accept they were reasonable prices. Here the evidence also indicates that during the hunting in May 2019, LP told the hunters that if they shot more Oryx than originally agreed to, he would reduce the price from N$1100 per Oryx to N$1000 per Oryx. 71. The quantum of damages is thus N$5840 in respect of the three Oryx sold for such price as per the reasoning evident from _Ranger_ and N$1000 in respect of the remaining Oryx on the same basis. This amounts to N$146 840 (N$5840 + N$141 000) in respect of the Oryx hunted as per the list of LP and his girlfriend plus N$30 000 in respect of the Oryx testified to by Mr Gariseb dealt with above. Hence a total amount of N$176 840. _Conclusion_ 72. It follows from what is stated above that the appeal against the claim in convention stands to be dismissed whereas the appeal against the dismissal of the counterclaims must succeed to the extent indicated above. 73. As the court _a quo_ gave one composite cost order, this will need to be corrected to reflect the position where the counterclaim is successful in part. In other words, the plaintiff _a quo_ , must be awarded the costs of the claim in convention and the defendant _a quo_ the costs of the counterclaims in terms of the normal approach that costs should follow the result. 74. As far as the costs of the appeal is concerned, I am of the view that no order as to costs should be granted as the appeal against the claim in convention failed but the appeal against the dismissal of the counterclaims succeed. In effect both parties were equally successful and unsuccessful in the appeal and hence the lack of any costs order. 75. In the result, the appeal against the orders of the court _a quo_ in respect of the arrear rental is bound to be dismissed whereas the appeal against the dismissal of all counterclaims succeeds partially and to the extent set out above. For the sake of convenience I shall repeat the portion of the order of the High Court which remains in place. 76. In the result the following order is made: 1. The order of the High Court is set aside and substituted with the following order: 1. Judgment is granted to the plaintiff in respect of the claim in convention in the following amounts: 1. N$200 000 plus VAT being the rental for the period February 2018 to September 2018; 2. N$165 000 plus VAT being the rental for the period October 2018 to August 2019; and 3. Interest on the above amounts at the rate of 20 per cent per annum _a tempore morae_ to the date of payment. 2. Judgment is granted to the defendant in respect of the claims in reconvention in the following amounts: 1. N$23 240 in respect of the claim in respect of alternative grazing; 2. N$176 840 in respect of the claim in respect of wrongful hunting; and 3. Interest on the above mentioned amounts at the rate of 20 per cent per annum _a tempore morae_ from the date of this judgment to the date of payment. 3. Defendant is to pay the costs in respect of the claim in convention and the plaintiff to pay the costs in respect of the claim in reconvention. Such costs to include the costs of one instructing and one instructed counsel. 2. No costs order is made in respect of this appeal. **______________________** **FRANK AJA** **______________________** **SHIVUTE CJ** **______________________** **PRINSLOO AJA** APPEARANCES APPELLANT: | JP Ravenscroft Jones Instructed by Theunissen, Louw & Partners ---|--- | RESPONDENT: | J Jacobs Instructed by Van der Merwe-Greeff Andima Incorporated 1 _Witon Chemicals (Pty) Ltd v Rebuff (Pty) Ltd_ [2002] 4 All SA 232 (T) at 239-240 and _Road Accident Fund v Mothupi_ 2000 (4) SA 38 (SCA) paras 16-17. 2 _Thompson v Scholtz_ 1999 (1) SA 232 (SCA) at 247A-D. 3 _Maasdorp’s Institutes of South African Law: The Law of Contract_ , Vol III 5 ed p 188. See also _Keyter N.O. v Keevy_ 2018 JDR 0357 para 20. 4 _AFS Maasdorp_ _and CG Hall_ and authorities there cited at 73-74. 5 Clauses 4.1, 15 and 18 of the agreement. 6 _Soffiantini v Mould_ 1956 (4) SA 150 (E). 7 _Soffiantini_ at 153E. 8 Nature Conservation Ordinance 4 of 1975. 9 PJ Badenhorst, JM Pienaar and H Mostert _Silberberg and Schoeman’s The Law of Property_ 5th ed (2006) at p 265 the case law cited there in respect of the _actio ad exhibendum_. #### __Related documents ▲ To the top >