REPUBLIC OF NAMIBIA HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK JUDGMENT Case No: I 3994/2015 In the matter between: LINDA DIANNE HUBBARD 1ST PLAINTIFF ANDREW WILLIAM CORBERT 2ND PLAINTIFF and TATJANA CLAUDIA BATZ 1ST DEFENDANT MARKUS ARNO BATZ 2ND DEFENDANT JESKO WOERMANN 3RD DEFENDANT LINDA ERASMUS 4TH DEFENDANT REGISTRAR OF DEEDS 5TH DEFENDANT Neutral citation: Hubbard v Batz & Others (I 3994/2015) [2021] NAHCMD 420 (20 August 2021) Coram: USIKU, J Heard: 08, 11-12 June 2020; 26, 29-30 October 2020; 23 March 2021 and 20 April 2021 Delivered: 20 August 2021 Reasons: 17 September 2021 2 Flynote: Contract – Simulation – Test – Whether transaction is simulated is a question of its genuineness, which depends on consideration of all facts and circumstances surrounding it. Contract- Right of pre-emption – Sale to purchaser with knowledge of right of preemption – Holder of pre-emption right entitled to an order declaring the contract of sale null and void. Summary: The plaintiffs are holders of a pre-emptive right over certain immovable property. The first defendant, without knowledge or consent of the plaintiffs purported to ‘donate’ her entire interest (undivided share) in the immovable property to the third defendant. At the time of the transaction the third defendant was fully aware of the plaintiffs’ rights. The plaintiffs instituted action stating that the transaction between the first and third defendants was not a ‘donation’ but a sale dressed up as a donation. The court agreed with the plaintiffs and granted relief setting aside the transaction. ORDER 1. The purported contract of ‘donation’ entered into between the first defendant and the third defendant does not constitute a donation, but a transaction, the intended and actual entering into of which entitled and entitles the plaintiffs to exercise the right of pre-emption created in terms of the agreement entered into between the plaintiffs and the first and second defendants on or about 23 July 2007. 2. The plaintiffs are entitled to exercise the right of pre-emption in respect of the transaction entered into between the first and third defendants relating to the half-shares of the properties as more fully described in para 3 hereunder. 3. The fifth defendant is hereby ordered to cancel, in terms of s 80(1) of the Deeds Registries Act (Act No. 14 of 2015), the registration of Deed of Transfer No. T 3347/2015 registered in the name of the third defendant, in respect of: ½ share in and to: 1. Certain: Portion 48 (Portion of Portion 12) of the Farm Nubuamis No 37 3 Situate: In the Municipality of Windhoek Registration Division “K” Khomas Region Measuring: 29, 9987 hectares and ½ share in and to: 2. Certain: Portion 64 (Portion of Portion 53) of the Farm Nubuamis No 37 Situate: In the Municipality of Windhoek Registration Division “K” Khomas Region Measuring: 25, 0539 hectares and to cancel all the rights accorded to the third defendant by virtue of the said deed. 4. The third defendant is ordered to pay the costs of the plaintiffs and such costs include costs of one instructing and two instructed legal practitioners. 5. The matter is removed from the roll and regarded as finalised. JUDGMENT USIKU, J Introduction [1] This court made an order on 20 August 2021 in the terms as set out above and undertook to provide its reasons on 17 September 2021. The reasons follow herein. [2] The first plaintiff is Linda Dianne Hubbard. The second plaintiff is Andrew William Corbett. The first and second plaintiffs are wife and husband. [3] The first defendant is Tatjana Claudia Batz. She is a national of German and was an employee of Woermann Brock & Co. (Windhoek) Pty Ltd, (“the business”). According to the evidence, the first defendant was deported from Namibia to Germany in 2016, when it was discovered that she was not lawfully in the country. 4 The second defendant is Markus Arno Batz. The first and second defendants are sister and brother. The third defendant is Jesko Woermann. The third defendant is the managing director of the business. The fourth defendant is Linda Erasmus. She is the conveyancer who attended to the registration of the transfer of the immovable property, the subject matter of the present litigation. The fifth defendant is the Registrar of Deed. [4] The plaintiffs seek to enforce a right of pre-emption granted in their favour by the first and second defendants on or about 23 July 2007. The pre-empt