nature and extent of the required performance is determined by the intention of the parties upon an interpretation and construction of the agreement. The required performance, considering the objective set out at the outset of the 2004 agreement is ‘the establishment of the headquarters of AFRO-CAA in Namibia’, as set out in the cabinet decision quoted in the preamble and not merely the establishment (as an entity) of AFRO-CAA, upon which Mr Marcus’ approach was premised. The cabinet decision significantly also referred to the obligation of other offices/ministries/agencies to make the necessary provisions should Namibia succeed in hosting the ‘headquarters’. What was intended by the term ‘establishment of the headquarters’ of AFRO-CAA as the performance required under the agreement is to be interpreted in the accordance with the general principles set out above. The starting point is the ordinary grammatical meaning of the term ‘establishment.’ In the New Shorter Oxford Dictionary the relevant meaning of ‘establishment’ is ‘something established, the action of the establishing; ‘the fact of being established.’ The verb ‘establish’ in that authoritative work has a number of meanings. The first two are as follows: ‘1. Institute or ordain permanently by enactment or agreement; spec. give legal form and recognition to (a Church) as the official church of the country; 2. Set up on a permanent or secure basis; bringing to being, found, (a government, institution, business, etc).’ Clearly the second meaning is applicable to the use of the term ‘establishment’ in the agreement, having regard to the context in which the word is used, upon an interpretation of the agreement as a whole, including the its purpose. Importantly the agreement speaks of establishment of the headquarters of AFRO-CAA – and not merely of AFRO-CAA as an entity, as was repeatedly referred to by Mr Marcus in argument and in his questions to the defendant’s principals. Plainly, what the parties had in mind was that the
The invoice in the sum of N$486 287, 74 was, Mr Kamau pointed out, incorrect and should have been only for N$480 037, 35. It was in respect of expenses incurred in May 2008. It included an amount of N$180 101, 64 in respect S&T allowances for two delegates to Tripoli and Nigeria even though the preceding entries stated that one of the delegates had only travelled to Tripoli and not Nigeria. The invoice in respect of N$240 569, 82 was for expenses in July 2008, after the agreement had been terminated (on 13 June 2008). It included an S&T claim for two delegates in the sum of N$143 371 and was without any supporting documentation. The claim in the sum of N$64 616, 29 is merely specified as stating ‘promotion in regard of the contract’ (sic). It is also with reference to July 2008. Not one of these invoices is further specified with reference to documentation. Mr Kamau stated in evidence however that the sum N$64 161, 29 was in respect of professional fees for July 2008 and the balance for that month, on the assumption of the fee of N$153 089 (representing a 10% increase in respect of the fee of N$139 145). Mr Kamau stated that the Government was provided with supporting documentation. But this would not be payable if severance is paid to the defendant. Mr Kamau stated that the signature on the four invoices was that of Mr Kauaria, acknowledging that each of the sums was payable. Included in the first invoice was the sum of N$78 917, 90 in respect of the rental for the offices of the new authority. This is not an expense of the defendant and clearly not envisaged in the 2004 agreement but rather that of an entirely different entity. It was thus plainly not payable by the Government to the defendant. In terms of the 2004 agreement, the Government was liable to pay ‘all fees and recoverable expenses as stipulated in Article 7.’ Article 7 provides for the payment of the defendant’s professional fee and does not include expenses for premises of the