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 establishment of the headquarters of AFRO-CAA ‘the in as set out in the cabinet decision quoted in the preamble and not Namibia’, 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 of the of ‘establishment headquarters’ 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 is the action of the establishing; fact of ‘establishment’ ‘something established, ‘the being established.’ The verb in that authoritative work has a number of meanings. ‘establish’ The first two are as follows: Institute or ordain permanently by enactment or agreement; spec. give ‘1. 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 in the agreement, having regard to the context in which the word ‘establishment’ 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 principals. Plainly, what the parties had in mind was that the defendant’s
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
grn%20v%20the%20african%20civil%20aviation%20agency%20(pty)%20ltd%20(i%203298-2009)%20[2014]%20nahcmd%2045%20(12%20february%202014).docx