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Commercial Law

You are employed as a candidate legal practitioner at one of the law firms in Windhoek. Last week you consulted with a new client, a certain Ms. Nangula. Your new client is the founder and one of the leaders of a Youth Movement fighting for a Cheaper and Affordable Housing in Namibia (YCAH). One of the objectives of YCAH is to inter aliaensure that the rent control system is put in place and implanted in Namibia.

Upon consulting with your client, the following salient facts became evident:

1. Nangula is employed as a researcher at one of the tertiary institutions in Windhoek, Namibia.

2. Given the exorbitant and high market prices for immovable properties in Windhoek, your client could not qualify for a home loan or mortgage bond with any financial institution or commercial bank. She had no choice but to rent a one-bed-room flat in a recently developed suburb on the outskirts of the capital. Still, the rent is unreasonably high, regard being had to your client’s income and purchase power.

3. Further, it is your client’s instructions that herself and other leaders of YCAH have held several meetings with representatives of the Namibian government as well as the line Ministries in order to discuss and find a durable solution to the housing crisis in Namibia. To this end, a number of resolutions were taken: one of them was that the Namibian Government, and more specifically the line Ministry, has agreed and undertaken to implement and operationalize the rent control system in accordance with the existing and binding laws.

4. Pursuant to the above resolution and undertaking by the line Ministry, your client and her Movement were requested to nominate individuals who could be appointed at Rent Control Boards across the country. Without any delays, your client and her colleagues forwarded the names of proposed members to the Ministry in April this year.

5. Notwithstanding the foregoing, your client instructs you that in July 2018, the line Ministry has since repudiated and negated on its earlier commitments and undertakings as they have expressly indicated that they are no longer willing and able to implement the rent control system as per the existing legislation. The ground given by the Ministry is simply that the implementation thereof is practically impossible.

Your client is aggrieved by the Ministry’s unjustified and irrational conduct and instructs you to explore the available legal remedies to assert her rights.

Instructions:

Based on the above facts and instructions, you are required to draft court papers so as to assert and protect your client’s rights. To this end, you will be expected to be innovative and creative in order to make out a case for the reliefs and remedies sought in your papers.

Sample Answer

In the High Court of New Zealand:

In the matter of: breach of covenant made on the implementation and operation of the rent control system

Between: Ms. Nangula (1st plaintiff) and the Youth Movement fighting for a Cheaper and Affordable Housing in Namibia (YCAH) And: Namibian Government (1st defendant) and The Lines Ministry (2nd defendant).

Affidavit/Affirmation Of Ms. Nangula
I Ms. Nangula swear/solemnly and sincerely affirm that:

I am the founder and one of the leaders of a Youth Movement fighting for a Cheaper and Affordable Housing in Namibia (YCAH). I am also employed as a researcher at one of the tertiary institutions in Wondhoek, Namibia.

I could not qualify for a home loan or mortgage bond with any financial institution or commercial bank, so I had no choice but to rent a one-bed-room flat in a recently developed suburb on the outskirts of the capital.

I have had several meetings with representatives of the Namibian government as well as the line ministries, in the presence of other YCAH leaders with the aim of discussing and findinga durable solution to the housing crisis in Namibia.

In our meetings, it was resolved that the Namibian Government, and more specifically the line Ministry,  would undertake to implement and operationalize the rent control system in accordance with the existing and binding laws.

The ministry has since repudiated and negated the commitments herein stated as from July 2018.

That statements made here are true and in line with the oath ad affirmation statutes.
Deponent Signature

………………………..

(Ministry of Justice, 2018)

Statement Of Claim
Filed by:

(Ministry of Justice, 2018)

The Plaintiff Claims:
Background To Cause Of Action
Given the exorbitant and high market prices for immovable properties in Windhoek, the applicant could not qualify for a home loan or mortgage bond with any financial institution or commercial bank. She had no choice but to rent a one-bed-room flat in a recently developed suburb on the outskirts of the capital. With the rent still being unreasonably high, and surpasses not just the applicant’s income and purchase power, but most of the dwellers in the city.

As a result of these frustrations, the applicant and other leaders of Youth Movement fighting for a Cheaper and Affordable Housing in Namibia (YCAH) held several meetings with representatives of the Namibian government as well as the line Ministries in order to discuss and find a durable solution to the housing crisis in Namibia. To this end, a number of resolutions were taken: one of them was that the Namibian Government, and more specifically the line Ministry, agreed and undertook to implement and operationalize the rent control system in accordance with the existing and binding laws.

Pursuant to the above resolution and undertaking by the line Ministry, the applicant and her Movement were requested to nominate individuals who could be appointed at Rent Control Boards across the country. Without any delays, the applicant and her colleagues forwarded the names of proposed members to the Ministry in April this year.

However, as at July 2018, the line Ministry had since repudiated and negated on its earlier commitments and undertakings as they expressly indicated that they are no longer willing and able to implement the rent control system as per the existing legislation. The ground given by the Ministry is simply that the implementation thereof is practically impossible. As a result, the applicant has filed an action against the ministry for failing to perform their obligation in the covenant.

Claims
The respondents reached an agreement with the plaintiff that they would undertake to implement and operationalize the rent control system in accordance with the existing and binding laws.

The agreement was legally binding to both parties, as there were aspects of consideration and every other elements that makes such agreements enforceable. The applicant did her part of the bargain in the agreement. The respondent requested for nominations that could be appointed at the envisioned Rent Control Board and, without any delays, the applicant and her colleagues forwarded the names of proposed members to the Ministry in April this year.However, the defendant failed to undertake their duty and thus breached the covenant.

This is another case of a government failing on its duty to take care of its citizens. It is high time governments are held accountable for the promises they make. Citizens have the right to enjoy a peaceful and affordable lifestyle especially for essentials such as food, healthcare and shelter. The government has an overriding responsibility to ensure that the citizens they rule are accorded affordable healthcare, affordable food and affordable shelter(Thomas, 2015). When the government fails to provide such basic needs for its citizens or does not make an atmosphere which makes it easy for the citizens to access the needs, then it can easily be concluded that such a government has failed to take care of its citizens (Thane, 2016). For a country struggling on issues of housing, a durable solution is appropriate. Rent control is an ideal preference. It is the most effective way in which the government can protect its citizens from unreasonable rent payments from property owners and thus accord them affordable shelter (Hardoy & Satterthwaite, 2014). Governments have adopted this strategy and the Namibian government’s claim of impracticability is a farce.

What is even worse is when a government promises to undertake a particular project that would benefit the citizens but haphazardly neglects this duty.  Drawing from the laws of contract, every person is bound by every legal agreement reached and parties are required to accomplish their obligations to the end in such agreements.(Carter, Harlan & Lindgren, 2012) When the government reaches an agreement mentioned with any organization, association or movement, it is bound to fulfill its part of the bargain. Neglecting a contractual duty is a breach of contract and not even an arm of government has the power to breach (Peden, 2001). Therefore, the government’s actions -in this case through the lines ministry- in the contract with the applicant stand out as a potential breach of contract holding them liable for neglecting their duty in the contract.

The impractibility of a rent control system as claimed by the respondents is irrational thinking. Dieleman and Clark (2017) acknowledge the fact that many government agencies have set the maximum rent that can be charged by property owners in their houses to protect citizens from housing exploitation. For instance, an apartment in the New York Central Park area may be $400 in rent, far much less than the average cost of $2,000 in a free market (Desmond, 2018). This makes apartments affordable to those living within such localities and ensure that property owners are not exploiting tenants because of their ‘inalienable’ control of a necessity.
Remedies Sought
The applicant seeks relief and remedies emanating from the breach of a promise. First, the respondent neglects their obligation as agreed. Therefore, the applicant seeks an equitable remedy in specific performance. The three parties came together to deliberate on and resolved that the rent control system would be implemented and operationalized in unison with the existing and binding laws. There was a legal obligation imposed on the line Ministry to ensure that the agreed obligation has been fulfilled. However, the line ministry has since repudiated and negated on its earlier commitments and undertakings as they have expressly indicated that they are no longer willing and able to implement the rent control system as per the existing legislation. To this effect, the applicant seeks a court ordering specific performance –in this case- as it had been promised in the covenant between the three parties.

A breach of contract means remedies for the aggrieved party to the contract(McKendrick, 2014). The applicant is entitled to damages for injury suffered because of the breach. Secondly is remedies in nominal damages. There was an agreement to implement and operationalize the rent control system in accordance with the existing and binding laws. This was done in April and immediately the applicant and her movement did their part of the bargain, which was forwarding the names of the proposed members of the Rent Control Boards across the country to the ministry. It took the government three months to come up with a blatant rebuttal and assertion that it would be difficult to implement the details of the prior agreement. While there was no tangible loss emanating from the breach, the government acted blatantly although and nominal damages would do well to punish their unjustified and irrational
Lastly, there is an infringement of a public right to housing in the case, which is being facilitated by the respondent’s complacency. As a result, the applicant seeks punitive damages to punish the defendants for failing to act on the issue with the urgency it demanded.

The applicant seeks a court order in specific performance and all of the aforementioned damages –punitive and nominal damages.
Date:  

Signature:  

References
Carter, J. W., Harland, D. J., & Lindgren, K. E. (2012). Cases and materials on contract law in Australia. (6th ed.) LexisNexis Butterworths.

Desmond, M. (2018). Heavy is the house: Rent burden among the American Urban Poor. International Journal of Urban and Regional Research, 42(1), 160-170.

Dieleman, F., & Clark, W. (2017). Households and housing: Choice and outcomes in the housing market. (1st ed.) Routledge.

Hardoy, J. E., & Satterthwaite, D. (2014). Squatter citizen: life in the urban third world. (1st ed.). Routledge.

Ministry of Justice. (2018). Going to court: Documents - prescribed forms & useful templates. Retrieved from https://www.justice.govt.nz/courts/going-to-court/without-a-lawyer/representing-yourself-civil-high-court/documents-prescribed-forms-and-useful-templates/

McKendrick, E. (2014). Contract law: text, cases, and materials. Oxford University Press (UK).

Peden, E. (2001). Incorporating terms of good faith in contract law in Australia. Sydney Law Review, 23, 222.

Thane, P. (2016). The foundations of the welfare state. (2nd ed.) Routledge.

Thomas, J. (2015). Public Rights, Private Relations. (2nd ed.) Oxford University Press, USA

 

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