TransNamib is embroiled in a legal battle with its tenant, Intercape over unpaid rentals allegedly amounting to at least N$1.5 million, Business Express understands.
Despite Intercape having settled some of the arrears which have engulfed a dispute in which TransNamib also wants Intercape evicted from its premises at No 19. Prof. Mburumba Kerina Street, Windhoek, there is still disagreement over the actual total arrears.
Documents seen by Business Express show that Intercape has since made payments of more than N$400 000.
THE LEASE AGREEMENT
Documents also show that on or about 16 March 2020, TransNamib represented by former CEO, Johny Smith and Intercape duly represented by Johann Ferreira entered into a written lease agreement and the material, alternatively implied, in the further alternative tacit terms of the agreement included that the agreement shall commence on 01 August 2019 and shall terminate on 31 July 2021 with the parties having an option to renew the lease for a further 12 months, which option may not be exercised in the event of default or breach.
The lease also notes that Intercape would pay monthly rental in the amount of N$ 48 384.00 exclusive of VAT payable in advance, with the first payment payable on the commencement date, and monthly thereafter on or before the seventh day of each month.
Beyond this, the lease also notes that the monthly rental amount shall be subject to an annual escalation of 08% per annum; that Intercape shall be liable for all utility charges; that Intercape shall pay a monthly administrative fee equal to 5% of the utility charge; that Intercape shall not be entitled to withhold or delay payment of any monies due to TransNamib in terms of the agreement for any reason and should Intercape breach any material term of the Agreement, TransNamib shall be entitled to cancel the agreement and claim for damages without prejudice to any other rights that the Plaintiff may have.
Lastly, Intercape was to be liable for any costs, including legal costs on a scale between an attorney and own client that TransNamib may incur in enforcing any provisions of the agreement.
THE DISPUTE
In the dispute that has ensued, Trans Namib claims that it has duly performed and carried out its obligation in terms the lease agreement by giving Intercape full use and enjoyment of the property.
“Intercape has breached the agreement by failing to pay the monthly rental and utility charges and as a result, the full outstanding amount of N$ 1 327 672.58 (One million three hundred and twenty seven thousand six hundred and seventy two Namibia dollars and fifty eight cents) in respect of rental arrears and N$ 230 113.46 (Two hundred and thirty thousand one hundred and thirteen namibia dollars and forty six cents) in respect of arrear utility charges has become due and payable, as shown on a statement of account.
“Notwithstanding the written notice and demand dated 21 June 2022, to Intercape to make payment of such outstanding amount, alternatively summons constituting demand, Intercape has failed; neglected and/or refused to remedy the breach. In the premises, TransNamib is therefore entitled to the cancellation of the agreement, an eviction order against Intercape, and payment in the amount of N$ 1 557 786.05 (One million five hundred and fifty-seven thousand seven hundred and eighty-six Namibia dollars and five cents),” TransNamib says in documents seen by Business Express.
RELIEF SORT
At the Courts, and apart from recovering arrears, TransNamib is praying for an order terminating the lease agreement entered into by the parties, an order evicting Intercape and all other 3rd parties from No 19. Prof. Mburumba Kerina Street, Windhoek and in the event of Intercape’s failure to comply herewith, authorizing the Deputy Sherriff to enforce the order and carry out the eviction with the assistance of the Namibian Police.
Last week, the High Court, while deliberating on the matter in which the parties are not agreeing on the actual arrears at hand, ordered that TransNamib must file its notice in terms of rule 52(1) on or before 23 February 2024 while Intercape The defendant must file its notice of objection in terms of rule 52(2), if so advised, on or before 8 March 2024.
“Should no objection be lodged by the defendant, the plaintiff must deliver its amended particulars of claim on or before 13 March 2024. The parties must deliver a joint status report outlining the further conduct of the matter on or before 13 March 2024. In the event of objection, the parties are directed to file a report outlining the further conduct of the amendment application on or before 13 March 2024. The matter is postponed to 18 March 2024 at 15h30 for a Status hearing (Reason: Amendment of Pleadings),” the Court ordered.
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