MTC loses appeal against lease judgment
A ten-year lease agreement entered into by MTC for setting up a telecommunication base station at a plot in Swakopmund had a sequel in Supreme Court.
The telecommunication giant lost a case in the High Court for unilaterally and unlawfully terminating the lease agreement. It was ordered to pay for the remainder of the contract period, plus interest, totalling N$326 644.
The agreement had commenced on 1 August 2006. MTC was to pay a monthly rent of N$3 000 for a fixed period of 10 years, which would have expired on 31 July 2016.
The deal went sour after MTC terminated the contract.
The respondent in the matter, Siegfried Eckleben, purchased Plot 91 Nonidas, Swakopmund on 30 April 2010 from the executor of the estate of the late owner, Thilo Neumann, who had a lease agreement with MTC.
Neumann had erected various houses and structures on the property and had let a small room in a tower to MTC for the purposes of setting up a telecommunication base station.
The condition of sale was that the purchaser would inherit the lease agreement.
However, shortly after Eckleben bought the property he discovered that the radiation emitted by the antennas installed by MTC at the premises was more than 20 times the maximum recommended by the International Commission for Non Radiation Protection (ICNIRP).
He claimed that constituted a serious health risk to the public and his staff.
Eckleben approached MTC's project coordinator for radio networks and suggested either raising the antennas to a safe height, relocating them to an artificial palm tree, or entering into a new contract.
The MTC during these communications terminated the lease agreement on or about 25 January 2011, providing Eckleben with two months' termination notice.
The company stopped paying rent but Eckleben refused to accept the termination.
He sued MTC in the High Court and won the case.
MTC appealed, saying Eckleben's demands for moving the antennas were unreasonable.
But Supreme Court Judge Sylvester Mainga, Deputy Chief Justice Petrus Damaseb and Acting Judge Elton Hoff ruled that Eckleben's demands were not unreasonable and did not constitute a breach of contract.
“The appellant failed to prove that the performance of its obligation in terms of the contract was rendered impossible,” they found, dismissing the appeal.
They added that MTC should have enforced the terms and conditions of the contract or explored viable alternatives with Eckleben before it terminated the contract.
FRED GOEIEMAN
The telecommunication giant lost a case in the High Court for unilaterally and unlawfully terminating the lease agreement. It was ordered to pay for the remainder of the contract period, plus interest, totalling N$326 644.
The agreement had commenced on 1 August 2006. MTC was to pay a monthly rent of N$3 000 for a fixed period of 10 years, which would have expired on 31 July 2016.
The deal went sour after MTC terminated the contract.
The respondent in the matter, Siegfried Eckleben, purchased Plot 91 Nonidas, Swakopmund on 30 April 2010 from the executor of the estate of the late owner, Thilo Neumann, who had a lease agreement with MTC.
Neumann had erected various houses and structures on the property and had let a small room in a tower to MTC for the purposes of setting up a telecommunication base station.
The condition of sale was that the purchaser would inherit the lease agreement.
However, shortly after Eckleben bought the property he discovered that the radiation emitted by the antennas installed by MTC at the premises was more than 20 times the maximum recommended by the International Commission for Non Radiation Protection (ICNIRP).
He claimed that constituted a serious health risk to the public and his staff.
Eckleben approached MTC's project coordinator for radio networks and suggested either raising the antennas to a safe height, relocating them to an artificial palm tree, or entering into a new contract.
The MTC during these communications terminated the lease agreement on or about 25 January 2011, providing Eckleben with two months' termination notice.
The company stopped paying rent but Eckleben refused to accept the termination.
He sued MTC in the High Court and won the case.
MTC appealed, saying Eckleben's demands for moving the antennas were unreasonable.
But Supreme Court Judge Sylvester Mainga, Deputy Chief Justice Petrus Damaseb and Acting Judge Elton Hoff ruled that Eckleben's demands were not unreasonable and did not constitute a breach of contract.
“The appellant failed to prove that the performance of its obligation in terms of the contract was rendered impossible,” they found, dismissing the appeal.
They added that MTC should have enforced the terms and conditions of the contract or explored viable alternatives with Eckleben before it terminated the contract.
FRED GOEIEMAN
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