THE HIGH COURT OF NAMIBIA
the matter between
HEINRICH ROTHE versus
ASMUS CONSTANCE ASMUS
DEFENDANT SECOND DEFENDANT
in this matter alleges he is an ex-
of first respondent. He sues in this capacity.
states that he and first respondent operated a business in
partnership in terms of a written agreement of partnership which he
annexes to the summons. This partnership was dissolved orally
between them during January, 1994. This oral dissolution agreement
was acted upon and agreement was reached with regard to certain
matters whereas no agreement could be reached in respect of certain
others. The latter matters are set out in an annexure C to the
Particulars of Claim. The plaintiff seeks an order in terms whereof
the Court must adjudicate on the matters disagreed upon
alternatively that the Court appoints a liquidator to do this
and to render accounts in this regard.
of the matters disagreed upon relates to certain
expenses allegedly wrongfully incurred to recompense second
defendant for overtime and travelling expenses.
Second defendant is the wife of first defendant. These
alleged overpayments are claimed from second defendant. This
claim against second defendant is in my view excipiable. No basis
is laid for it. Plaintiff cannot claim it on behalf of the
partnership as he is clearly not authorised to do so and
neither can he claim it in his personal capacity as on his own
allegations it is, at most, a partnership claim.
Although Mr Vaatz for the plaintiff did not concede this
claim was excipiable he also did not seriously contend that it was
not. The exception taken against this claim is a good one and
I will make the normal order in due course.
was also taken to the claims against first defendant. What I set out
above is a severely truncated version of plaintiff's claim in an
effort to distill it to its essence. I do not intend to set it out
in detail as it is in many respects vague and embarrassing. This
much was conceded by Mr Vaatz. The defendant however chose to except
on the ground that it did not disclose a cause of action and not to
give plaintiff notice to cure the vague and embarrassing nature of
the pleading. Because of this I have attempted to separate the wheat
from the chaff and to ascertain, once this was done, whether there
is any merit in the exception taken.
do not find any problem with the principle underlying
plaintiff's claim. A liquidator is not always appointed but the
appointment of one is in the discretion of the Court. Where the
dispute between the partners relates solely to a question of law I
cannot see why a Court of law will not deal with it and not
leave this to a liquidator who normally is a person with an
accounting background. Plaintiff is not asking the Court to be
the liquidator (which role it can also assume in its discretion
depending on the nature and scope of the disputes) but is saying
that the parties have agreed on certain matters with regard to the
dissolution but were in disagreement with regard to certain
others which dispute someone must determine. Whether the Court
does it in its discretion or refers it to a liquidator is neither
here nor there for the purposes of this exception as this relief is
sought in the alternative. How the Court will exercise
this discretion cannot be determined at the
first prayer relates to matters the parties allegedly agreed upon.
In terms of this agreement each party took some of the property of
the partnership at an agreed value which had to be paid into the
partnership account. Plaintiff makes no allegation that defendant is
actually in possession of the items listed and furthermore seeks
interest at "prime bank rate" alternatively a "reasonable
user fee or rental" for the period the defendant possessed
these items. There is also no allegation that defendant has not paid
into the partnership the agreed value of the items which amount is
also claimed. As the prayers must follow
the allegations in the summons one cannot assume the amount was not
paid or that first defendant took possession of the items.
Furthermore there must be a basis for the interest or user fees or
rental. The Court cannot make an agreement for the parties. They
either expressly or impliedly agreed on such terms and if not no
interest, save mora
interest, is claimable. Plaintiff must aver what he claims and on
what basis. This relief sought is thus excipiable.
far as the disputed items listed in annexure C to the summons are
concerned I also have certain problems. (I do not deal with those
items involving second defendant for the reasons set out above) . A
certain amount is claimed as being "unexplained withdrawals".
Here again, Plaintiff must claim this amount or abandon it. If he
feels the partnership is entitled to it he must claim it and not
leave it in limbo as if it still can be explained. A more
problematical area relates to the question of trade discounts which
first defendant allegedly received for his own business by virtue of
ordering items through the partnership. Plaintiff alleges these
discounts varied between 3 0 - 50% and should have been credited to
the partnership if I understand the allegations correctly. Here,
again, he must lay a basis for his claim in an agreement either
expressly or orally and claim it if he is indeed the party who is
claiming it and not disputing it.
is another ground which makes the particulars of claim excipiable
which ground was not taken by the excipient and although I am not
going to decide the matter on this point
I deal with it
written agreement of
makes provision for the dissolution of the partnership and the steps
that must be taken in such an event. This written agreement contains
a non-variation clause other than in writing. The oral dissolution
agreement relied on by plaintiff is clearly in conflict with the
written agreement. I mention this as even if the matter is not taken
up now by defendants it may still be done in future to the detriment
of plaintiff and his current claim. (Shifren
& Others v S A Sentrale Ko-op Graanmaatskappy Bpk.
A Sentrale Ko-op
Bpk v Shifren & Andere,
the result I make the following order:
exception against the Particulars of Claim of first defendant is
upheld with costs.
exception against the Particulars of Claim of second
defendant is upheld with costs.
plaintiff is granted 14
from date of this order to file amended particulars of
BEHALF OF THE PLAINTIFF: MR
BEHALF OF FIRST & SECOND DEFENDANT: Instructed by:
R T6TEMEYER Behrens & Pfeiffer