“The defendant should not be allowed in the circumstances to hide behind the veil provided by the application for absolution from the instance.”
This was said by Judge Thomas Masuku when he set out his reasons for refusing Swakopmund-based realtor Erwin Spranger absolution from a N$10 million lawsuit by Congolese army general Francois Olenga.
The judge said Spranger received the money in his account and should explain to the court how and under what circumstances he did so and the consideration involved in the receipt of such a large amount of money.
Olenga is suing Sprangers for US$850 000. Sprangers is asking the court to dismiss the general’s claim and to order Olenga to also pay his legal costs.
Olenga claims he paid a total of US$900 000 to Sprangers’ estate agency, Kintscher Estate Agents, after he and Sprangers reached a verbal agreement in terms of which Sprangers was to act as his agent in the development of two properties that the general owns at Swakopmund.
Sprangers, however, denies the allegations. According to him, he and the general had an oral agreement that the general would act as his agent to sell an antique 18th century Qianlong Chinese vase.
He further stated in court documents that the general managed to secure a buyer for the vase in February 2010, who agreed to pay N$10 million for the vase. According to Sprangers, after an amount of N$6.78 million was paid into his bank account as part of the purchase price of the vase, he paid an amount of US$50 000 to the general as commission.
Olenga is denying that he played any part in the sale of an antique Chinese vase in response to Sprangers’ statement. According to the general, the first time he heard about the existence of the vase was when he read about it in the court papers filed on behalf of Strangers.
According to Judge Masuku, however, the plaintiff (Olenga) set out a case and established a nexus between himself, Spranger and the amount deposited in Spranger’s business account.
“In my view, the evidence adduced by the plaintiff, at best, requires an answer from the defendant, as I have endeavoured to demonstrate above. At worst, I am of the firm view, and applying the lower standard advocated above, that the evidence led, properly considered in its totality, has a potential for a finding in the plaintiff’s favour,” the judge stressed.
He said the contention of Advocate George Coleman, acting for Spranger, that the quality of the evidence by Olenga is full of contradictions and inconsistencies is neither here nor there. The fact of the matter, the judge said, is that it paints a clear picture, regardless of the criticisms levelled against it.
“What is clear and undisputed is that the plaintiff and the defendant know each other in respect of the improvement of landed property the plaintiff owns in Swakopmund,” he emphasised. According to Judge Masuku, it was not disputed that the plaintiff asked for and was given by the defendant the business account number of his estate agency.
He further stated that it is also undisputed that money was deposited into the said account, ostensibly on the instructions of the plaintiff (Olenga). According to the judge, this was confirmed by independent witnesses.
He went on to say that the evidence inexorably points to a need for the defendant to be called to his defence to explain why he received the money, as it is clear that he and the plaintiff (Olenga) had some business engagements and that he gave his details of his bank account to the plaintiff, into which huge amounts were deposited.