NOT REPORTABLE

							CASE NO.:I 1355/2010

IN THE HIGH COURT OF NAMIBIA
In the matter between:

HENDRIK JOHANNES PEARSON				Plaintiff

and

A E M ORMAN							Defendant

Heard on: 							2011 January 24

JUDGMENT

[2] From the amended particulars of claim the plaintiff sues on a written agreement; and, in terms of rule 18(6) of the Rules of Court he annexed a copy of the agreement to his pleading, being Annexure 'A'. The plaintiff avers at para (4) of the particulars of claim as follows:

The plaintiff then proceeded to para (4) where he sets out under what he calls 'tacit/implied terms of the Agreement'.

[3] Thus, the plaintiff avers that apart from the written agreement there existed some unwritten agreement containing those 'tacit/implied' terms. It is this reference to some unwritten agreement that drew the decrial of the defendant. Consequently, the defendant delivered an exception to the plaintiff's pleading on 21 September 2010. It is the exception that I now proceed to determine in the present proceedings.

"No amendment of this contract will be valid unless reduce to writing and signed by both parties".

"The employee accepts that this agreement supercedes all preceding agreements".

103/05 (judgment of 31 March 2006) (Unreported), I stated at p. 12,

In the present proceedings, too, that is the manner in which I determine the defendant's exception.
[6] The gravamen of the defendant's exception, as submitted by Mr Horn, is based on the fact that on the pleadings the plaintiff relies on a written agreement. That, in my view is as clear as day. It is for that reason that the plaintiff, as I have mentioned previously, annexed a copy of the written agreement to his pleading in fulfillment of the premptory requirement under rule 18(6) of the Rules of Court. It is my view, therefore, that the plaintiff's contrived reliance on 'tact/implied terms' cannot take the plaintiff's case any further than where it has always been; that is to say, all the terms of the agreement between the plaintiff and the defendant are indubitably contained in the said Annexure 'A'. It will be unsafe and unjust to hold otherwise. Having so held, I accept Mr Horn's submission that clause 2.3 of the agreement is critical in these proceedings. The written contract says that 'no amendment of this contract shall be valid unless reduced to writing and signed by both parties'.

[9] From what Mrs Schulz submitted on behalf of the plaintiff, I have a certain sympathy for the plaintiff, but after due consideration I think I have no good reason not to interpret and apply rule 18(6) of the Rules of Court against the backdrop of Annexure 'A' and, above all, apply the parole evidence rule in our law of contract.

[10] All these considerations impel me to the conclusion that the plaintiff's amended particulars of claim lack averments which are necessary, as explained previously, to sustain the action he has instituted. It follows that in my judgment the defendant's exception succeeds.

[11] On the issue of the plaintiff's legal practitioner's late filing of her heads of argument and her application for condonation, I did not hear Mr Horn to oppose the application. I, therefore, grant the application for condonation but I do not make any costs order thereanent in favour of the plaintiff.
[12]   Whereupon, the order of the Court is that -
1.	the plaintiff's (respondent's) counsel's late filing of her heads of argument is condoned and there is no order as to costs regarding the condonation application; and
2.	the defendant's (applicant's) exception is granted with costs.

PARKER J

COUNSEL ON BEHALF OF THE RESPONDENT/ PLAINTIFF:

Mrs Schulz

COUNSEL ON BEHALF OF THE APPLICANT/DEFENDANT:

Mr Horn