[14] By letter 25 August 2015, the First Defendant responded, informing the Plaintiff that the First Defendant was invoking clause 12 of the agreement and that the Plaintiff was afforded 30 days from the date of the letter to furnish the required guarantee. This letter reads: ‘FINAL NOTICE OF CANCELLATION OF THE SALE OF REMAINDER OF ERF 8413 WINDHOEK Reference is made to your letter dated 18 August 2015 and received on 25 August 2015. A further reference is also made to the letter from Bank Windhoek dated, 15 August 2015, but only received on 25 August 2015 regarding the same matter. As per clause 2.1 and sub-clause 2.2.2 on the Deed of sale, you were granted sixty (60) days from the date of signature, which date was 20 May 2015, to provide Council with a Bank or Financial Institution’s Guarantee. The date on which you were to provide such a Bank Guarantee lapsed on 20 July 2015. You thus failed to comply with the conditions of the above clauses of the Deed of Sale. You had sufficient time since 20 July 2015 to provide the City with the required Bank Guarantee and hence your request for further extension is equally not granted. The City herewith invokes the conditions of Clause 12 of the Deed of Sale and hereby gives you a notice of cancellation. You are therefore informed that this letter gives you the notice to submit the required Bank Guarantee within a period of 30 days from the date of this letter. Failure to comply with this notice shall lead to automatic cancellation of this sales transaction and no further negotiations shall be accommodated. Trusting that you will find the above in order, Yours faithfully (Signature) ____________ MR. K. UIRAB
ACTING MANANGER: PROPERTY MANAGEMENT’ [15] On 21 September 2015 the law firm Ellis Shilengudwa Incorporated (“ESI”) issued a letter of undertaking in favour of the First Defendant, in the following terms: ‘YOUR TRANSFER: ERF NO 8413, WINDHOEK MUNICIPAL COUNCIL OF WINDHOKE // ZEST INVESTMENT CC We hereby wish to advise that we hold at your disposal an amount of N$ 10’682’525.34(TEN Million Six Hundred And Eighty Two Thousand Five Hundred And Twenty Five Namibia Dollars And Thirty Four Cents) [which amount is inclusive of VAT and interest calculated up until 31 December 2015] plus 15% interest per annum calculated on N$ 8 595 000.00 as from 31 December 2015 until date of payment (both dates inclusive), which will be paid to you free of exchange on completion of the following transactions and subject to the availability of funds: Registration of the transfers of the members interest in the entities owning Sections 1 to 8 of the sectional development “Windmill Industrial Units (East)” situated on Erf 521 (a portion of remaining extent of Erf 50) Prosperita, Windhoek; Registration of the transfers of the members interest in the entities owning section 2 to 10 of the sectional title development “Windmill Industrial Units (West)” situated on Erf 522 (a portion of remaining extent of Erf 50) Prosperita, Windhoek; Cancellation of all extisting Bonds over the property; and Registration of transfer of the Property into the name of Zest Investment CC Should any circumstances arise to prevent, or in our opinion, unduly delay the registration of the abovementioned transactions, we reserve the right to withdraw from this undertaking by giving ourselves written notice to that effect. This undertaking is not negotiable or transferable and must be returned to ourselves upon payment of the aforementioned amount.