IN THE HIGH
COURT OF NAMIBIA
CASE NO.: I
In the matter
Heard on: 02
Delivered on: 21
J:  The Plaintiff, Buhrmann & Partners Consulting
Engineers, a firm of Consulting Engineers instituted an action
against the Defendant, Gunther Garbade (a farmer and Property
In the summons the
Payment of the amount of N$1 287 530.73 being the amount due and
`payable by the Defendant to the Plaintiff in respect of professional
consulting services rendered by the Plaintiff to the defendant from
March 2005 until December 2006 at the Defendant’s special
instance and request, which amount, despite due demand, the Defendant
refuses and/or neglects and or fails to pay:
2. Interest on the
aforesaid amount at the rate of 20% per annum a tempore morae,
until date of final payment.
3. Cost of suit,
4. Further and/or
defendant filed a notice of intention to defend. The Plaintiff then
filed a declaration. For the purpose of this judgment, I will not
repeat all the allegations in the declaration except paragraph 3
which states as follows:
“On or about the period March 2005 to December 2006 at
Windhoek, the Defendant acting in person entered into various oral
agreements to engage the services of the Plaintiff represented by
Siegfried Teetz and/or P Roland and/or R. Trossbach –to act as
engineers and to provide professional consulting services to
Defendant in the Am Weinberg Development situated on Erf 1944, Klein
Defendant raised a special plea to the effect that:
pleads that the action should not have been instituted against him,
as he at all relevant times acted for and on behalf of Jary
Enterprises 136 CC, a close corporation duly registered as such in
the Republic of Namibia which should be the correct Defendant,”
must also mention that Defendant pleaded on the merits, but for the
purpose of this judgment I will not deal with that.
Plaintiff filed a replication to the Defendant’s special plea
DEFENDANT’S SPECIAL PLEA.
In the alternative, and in the event of it being found that Defendant
acted for and on behalf of Jary Enterprises One Hundred and Thirty
Six CC, Plaintiff replies that Defendant is estopped from denying
that he is the correct party to be cited in these proceedings by
virtue of the following:
On numerous occasions prior to and after entering into the various
oral agreements to engage the services of the Plaintiff as referred
to in paragraph 3 (three) of the Plaintiff’s declaration the
Defendant by words and or conduct intentionally, alternatively
negligently, further alternatively innocently represented to
Plaintiff that he was the contracting party with the Plaintiff;
The Defendant’s words and/or conduct referred to above inter
alia consisted of the following:
The Defendant never indicating (sic) that he was acting on behalf of
Jary Enterprises One Hundred and Thirty Six cc;
The various correspondence between the parties and particularly the
appointment of the Plaintiff as the professional engineers for the
The identification of the Defendant as the client in the statement of
account sent by the Plaintiff to the Defendant;
The Defendant generally conducted himself as if he was the
contracting party in respect of the project.
Acting on the belief of the correctness of the aforesaid
representations, Plaintiff was induced, to its detriment, to enter
into the agreements aforesaid with the Defendant, ostensibly as the
contracting party to such agreements’.
At the commencement of the hearing Mr Mouton, acting on behalf of the
defendant, urged the Court to adjudicate on the special plea without
going in the merits of the case. He submitted that if the Defendant
was to be successful with the special plea then the merits will not
arise and that will dispose of the matter. Mr Corbett, acting on
behalf of the Plaintiff, submitted that the Court must hear the whole
matter (i.e special and the merits) in one go. He submitted that the
issues relating to the special plea are intertwined with the merits
of the case. I agreed with the submissions by Mr Mouton and ruled
that the special plea must first be adjudicated upon for the simple
reason that if the special plea is upheld, it will not be necessary
for the Court to hear all witnesses (including expert witnesses) some
who are from South Africa and who have been lined up to give evidence
and a lot of time and money (I suppose) would have been saved. On the
other hand, if the special is dismissed those witnesses must
unfortunately come and testify. I do not agree with Mr Corbett that
the issues are so intertwined that the special plea cannot be decided
on its own without referring to the merits. The way I see it, is that
the special plea has nothing to do with the merits. It merely has to
do with whether the defendant was the correct party to be sued or
Mr Garbade testified that during 2003 his wife and her sister
who inherited Erf. 1944 from their parents transferred the Erf into
Jary Enterprises One Hundred and Thirty Six Close Corporation. Erf
1944 is a huge Erf measuring 17250m2 and situated
in Klein Windhoek. The old house on the Erf was converted into a
restaurant. Mr Roland, an engineer and a partner in the plaintiff,
helped them with the conversion. That was done in 2003 and completed
in 2004. The conversion of the house into a restaurant was part of
the bigger project known as Am Weinberg Estate. In the sale’s
brochure the project is described as “the Am Weinberg Estate
is a unique combination of Health and Beauty service,
residential entertainment facilities as well as a limited amount of
shop space which will mutually benefit and complement other
activities on the Estate, the construction is estimated to be
completed in the second half of 2007.” Mr Garbade further
testified that he orally appointed the plaintiff as consulting civil
and structural engineers to the project. In a letter dated 11 June
2003 (exhibit A) from the Plaintiff signed (by Roland) the verbal
appointment is confirmed. The letter is addressed to “the
manager Am Weinberg wellness centre” and it states:
would herewith like to confirm your verbal appointment as Consulting
Civil and Structural Engineers for the Am Weinberg project. As was
agreed work done to date will be invoiced only once the projects gets
the “green light “ i.e. Final detail planning is started
with. We trust you agree with the above. (My underling)
Garbade testified that a deferred payment to work already done by the
plaintiff was because Jary Enterprises One Hundred Thirty Six cc had
no funds available at the time and would only pay once the project is
on the way.
Mr Garbade testified that he engaged the services of Bob Mould
Architects for the project as the principal architect of the project
and to that effect an agreement (Exhibit ‘B’) between
Jary Enterprises One Hundred Thirty Six and Bob Mould Architects was
also testified about a draft unsigned contract between Jary
Enterprises One Hundred Thirty Six cc and the plaintiff (Exhibit ‘C’)
which was drafted by the late Arnold van Zyl which reflected that Mr
Garbade was not the contracting party but Jary Enterprises One
Hundred Thirty Six and that payment was deferred to a later stage
when funds were to become available or the project being financed. He
testified that exhibit “C” was given to Mr Teetz for
signature but that such draft agreement was never signed by the
Mr Garbade also testified that it was agreed with all the
professionals that because Jary Enterprises One Hundred Thirty Six cc
had no funds available that payment for work done or to be done would
be paid at a later stage when the bigger project will be financed and
that ‘we get finance for the project’.
He further testified that the agreements with the professionals
including the plaintiff was at all times with Jary Enterprises One
Hundred Thirty close corporation. He was not acting in his personal
capacity and he was at all times acting on behalf of the Jary
Enterprises One Hundred Thirty Six cc. He also testified that,
although the invoice for fees from the plaintiff, exhibit ‘D’
was addressed to him in his name, he did not find that strange as he
was the manager of the project. The bigger project did not
materialize as they did not secure funding for the project.
Garbade also testified about two letters from Stubenranch dated 2
July 2004 and one from the plaintiff, Buhrmann & Partners, dated
22 November 2005 addressed to TransNamib which clearly show that Jary
Enterprises One Hundred thirty Six cc was the client of the Plaintiff
and was the contracting party. I will return to those letters when
analysing the evidence of Mr Teetz.
He testified that he was involved in the Am Weinberg project as the
coordinator to develop the business plan from 2003 until early 2007.
He testified that he received exhibit “C” draft unsigned
agreement from the late Arnold Van Zyl together with more or less
similar agreement so contracted between Jary Enterprise One Hundred
thirty Six cc and Seelenbinder Consulting Engineers. Exhibit “C”
was taken to Mr Teetz by Mr Garbade. He testified that he never
received exhibit ‘C’ back from the plaintiff.
testified that the idea was that all professionals would enter into
agreements with Jary Enterprises One Hundred Thirty Six cc so that
they knew where they stood because they would be paid at a later
stage once the project kicked off or at the end of the project either
in cash or in kind (acquire units that would be constructed as part
of the project as in lieu of payment for their fees).
26 and 27 July 2006 he sent e-mail correspondence to Teetz. The
e-mail of 26 July 2006 states: “I still need to know from you
what your fees are please and also that we can finalise the
one of 26 July 2006 was read because he was on tracking device.
e-mail dated 27 June 2006 from Oberprieler to Teetz states: “I
have not heard anything from you yet concerning the contract from
Koep & Co again. Were you able to obtain the contract yet?”
He testified that in these e-mails he requested to receive the signed
agreement between Jary Enterprises One Hundred Thirty Six cc and the
plaintiff He testified that exhibit “C” was never signed
nor returned to them. That was the case for the defendant.
Teetz testified that he is a partner in the plaintiff and a qualified
engineer. He testified that he was approached by the architect Jaco
Wasserfal to be involved in the bigger project but he was also
involved in the earlier stage of the conversion of the house into the
restaurant. He testified that from the start he was put under the
impression that Mr Garbade was the contracting party and not Jary
Enterprises One Hundred Thirty Six cc. He never bothered to enquire
from Mr Garbade whether he was acting personally or on behalf of a
Close Corporation. He testified ‘that we do draft a lot of
agreements and it is really important for us to get the right
employer in specified (sic) in the contract. We do contracts on a
daily basis so that is why it is important for us to get the terms
right and that Mr Garbade was our client.’ He testified
that the client was Mr Garbade and not Jary Enterprises One Hundred
Thirty Six cc. Mr Teetz further testified that the word ‘the
manager’ in exhibits ‘A’ referred to
Garbade representing AM Weinberg Wellness Center and not in his
personal capacity. He also testified that there were various site
meetings attended by him and Mr Garbade and he never told him that he
was acting on behalf of a Close Corporation. He testified that: ‘we
never dealt with somebody else, Mr Mouton. We always dealt with Mr
Garbade. There was never somebody else. Also at the time of
Wasserfall was still in, in his capacity as architect number One, if
I many call it like this, there was never Jary Enterprises or a cc
further testified that, regard to the magnitude of the project, in
the region of N$ 50 million, he did not bother to ascertain whether
Mr Garbade had personally such funds available or not. He testified
that all correspondence and payment certificates were made out to Mr
Garbade. He also testified that in March 2007 there was a meeting
between the partners of the plaintiff and Mr Garbade because of the
outstanding account and they wanted to know how he (Garbade) intended
to pay the outstanding account of their fees. He requested more time
to make the funds available. He did not claim that the account was
wrongly addressed to him nor did he dispute the claim amount of N$1
287 530.73 for professionals services rented by the plaintiff. Mr
Garbade undertook to pay the outstanding fees in installment of N$20
000.00, but that offer was rejected.
testified that he was not aware of any documentation before the
commencement of these proceedings which showed that Jary Enterprises
One Hundred and Thirty Six cc was the contracting party.
Mr Teetz also testified that during November 2006 the defendant asked
him whether he would consider taking up members’ interests in
the close corporation that owned the property. He informed him that
he would discussed that with his partners. He discussed it and the
offer was turned down.
cross examination, Mr Mouton, asked him to show any documentation
where Mr Garbade expressly said to him that Mr Garbade is involved in
this project in his personal capacity? He replied that there was
was also asked to explain why the Plaintiff addressed many letters to
Mr. and Mrs Garbade? ‘On many occasions Mrs Garbade was also
present, but she never, she never got into the, if you can call it
again negotiations she was present’. He replied.
He is a partner in the plaintiff and a professional engineer. He knew
the defendant for over 30 years. He testified that he was approached
by the defendant initially to assist with the conversion of the old
house into a restaurant. He later worked on the bigger project which
was to build a Wellness Centre, small hotel, coffee shop and houses.
testified that it was not of any concern to him who owned the
property. Because in many of the projects that they do the developer
is not the owner of the land.
testified that it was not his concern who will pay his fees and in
this case Mr Garbade was the one to pay his fees. He was asked to
explain why he addressed. Exhibit ‘A’ to “the
manager” ‘can you explain why it was addressed to the
manager?........I would not know at this stage really why the
manager. I cannot remember. Who did you understand to be the manager?
Mr Garbade,’ the Court then asked him: ‘Sorry, what is
your explanation? Can you just repeat that again? Exactly why I
called the manager, I am not sure, but it was always Mr Garbade in my
eyes. But what was your understanding of the word, the manager? The
one that manages, the one that instructs, I would say’.
He testified that Jary Enterprises One Hundred Thirty Six cc was not
the contracting party. He was asked about Exhibit “G6”
which was a letter written by himself to Mr and Mrs Garbade dated 12
November 2003. Why did you refer to Mr and Mrs Garbade in that
letter? Maybe I discussed the content with both of them together, but
I am not sure’. He also testified about a meeting between the
partners and Mr Garbade about the outstanding account and at that
meeting Mr Garbade asked for more time to pay the account. He did not
dispute the account. He offered to pay N$20 000.00 per month, but
that offer was rejected.
was the case for the plaintiff
OF THE EVIDENCE
On 2 July 2004 Mr Andries Cloete, on the letterhead of Stubenrauch
Planning Consultants cc Town and Regional Planners, addressed a
letter to TransNamib which clearly showed that Jary Enterprise One
Hundred and Thirty Six cc was the client and the contracting party. I
quote the letter verbatim (exhibit) “K”?
2 July 2004
Att. Mr. B
OF A PORTION OF PORTION 4 OF KLEIN WINDHOEK TOWN AND
TOWN LANDS NO. 70.
RELAXATION OF SOUTHERN BUILDING LINE-ERF 1944, KLEIN
of Jary Enterprises One Hundred and Thirty Six cc., the owner of Erf
1944, Klein Windhoek, we herewith apply for the lease of a
portion of Portion 4 of the Klein Windhoek Town and Townlands No. 70.
Erf 1944, Klein
Windhoek is situated between Jan Jonker Road and the railway reserve.
The City of Windhoek granted permission for the development of the
following on Erf 1944:
and dwelling houses with a maximum floor area of 5200m2.
shops with a maximum floor area of 500m2
A hotel with a
maximum floor area of 2700m2
health-resort & wellness centre with a maximum floor area of
THE EXISTING SITUATION
Southern boundary of Erf 1944 borders with the reserve of the
Windhoek-Gobabis railway line. Within this area, the railway line is
in a cutting, approximately 3 metres below the natural ground level.
will be noted from the attached plan that we are also in the process
of subdividing Erf 1944 into Portion A and Remainder. Until the
registration of the body-corporate for Portion A/1944, the ownership
of both portions will remain the same.
THE PROPOSED LEASE AREA AND TERMS
please find a diagram of the proposed lease area, measuring 4.556m2.
would like to report that during a site inspection on 2 July 2004 it
was found that the building contractor responsible for building works
on the site has already erecting a fence along the proposed boundary
of the lease area. We were informed that the fence was erected on the
proposed lease area. We were informed that the fence was erected on
the proposed lease boundary due to the following:
to the building activities, the area had to be fenced off. As the
civil engineering division from TransNamib informed the development
team that no technical problems are foreseen regarding the proposed
the terrain is more level at the proposed lease boundary and much
easier for the erection of a fence.
is not that the proposed lease was taken for granted. The erection of
the fence was rather a matter of fencing the area off as quickly as
possible on the most suitable terrain.
proposed lease area is to be used for gardening purpose. No buildings
are to be erected in the area.
Enterprise One Hundred and Thirty Six cc would like to lease
the proposed portion of Portion 4 of the Klein Windhoek Town and
Townlands No. 70 for a period of 9 years and 11 months,
RELAXATION OF BUILDING LINE
to the topography the owners of Erf 1944 would like to construct
the residential units as close as possible to the Southern
boundary of Erf 1944. We herewith request your permission for the
relaxation of the existing building line to construct residential
unites on the southern boundary of Erf 1944, Klein Windhoek.
trust that you will support the application and remain.
copy of that letter was faxed to Mr Teetz by Stubenrauch Planning
Consultant and based on that Mr Teetz, on the letterhead of the
plaintiff (Buhrmann & Partners Consulting Engineers), addressed a
letter to TransNamib Holdings Limited. (Exhibit “L”) The
Holdings Limited 22 November 2005
Mr D. du Plessis
WEINBERG-PERMISSION FOR CONSTRUCTION ON SOUTHERN ERF BOUNDARY-ERF
1944 KLEIN WINDHOEK.
telcon of 22 November 2005 refers.
herewith submit a copy of all documentation for your valued perusal
and comments, which were issued already to Mr. J Engelbrecht of
TransNamib during October 2005.
hereto please find a colored architectural layout indicating the
proposed development of the Erf 1944 Klein Windhoek, as well
as our AO contour survey showing Erf boundaries, the existing railway
line including sections of possible future extension to the railway
line all as requested by Mr Engebrecht.
proposed development is situated in 13 Jan Jonker Road Windhoek.
Luxurious residential units, a restaurant, shops and offices as well
as a wellness center are to be constructed on the site during
2006/2007. The residential units are designed along the Southern
boundary of the Erf adjacent to the TransNamib railway reserve of the
Windhoek-Gobabis railway line (see attached drawings).
2004 our client had applied to TransNamib to lease a portion
of the adjacent land for a period of +-9 years renewable
to be used for additional gardening purposes on which no
structure would be built (see copy of application attached).
residential units were designed in such a way that the outside living
area behind each unit would benefit from the additional land to be
leased from TransNamib.
application to have small portions of the present embankment
excavated for the above –mentioned use was presented on a
drawing to Mr. Engelbrecht during October 2005.
weeks ago Mr Engelbrecht informed us telephonically that the property
department of TransNamib has turned down our applications for the
additional embankment excavation.
furthermore informed us that no permission would be granted by
TransNamib to erect any building on the Erf boundary, affecting
houses, F5 F7 & F10.
we have to date not received any final decision in writing from
TransNamib we would therefore like to enquire whether the decision
given to us by Mr Engelbrecht would be reconsidered.
your reply in this matter we remain.
by S.R.TEETZ ’’
Mr Teetz testified that he read the faxed letter to him by
Stubenraunch Plainning Consultants and based on that letter he
addressed the letter to TransNamib on the same date. The evidence by
Mr Teetz that he may have overlooked or it was an oversight not to
pick up that Jary Enterprise One Hundred Thirty Six cc was the
client is simply not true. I say so because he earlier (before the
letters were produced in Court) testified that, “Mr Corbet, we
do draft a lot of agreements and it is really important for us to get
the right employer in specified (sic) in the contract. We do
contracts on a daily basis. So that is why it is important for us to
get the terms right and that Mr Garbade was our client” from
his own evidence Mr Teetz must have known that the client was Jary
Enterprise One Hundred Thirty Six cc and not Mr Garbade. How Mr
Garbade could have entered into a lease agreement with TransNamib,
whilst he did not apply to enter into such an agreement and also not
the owner of Erf 1944, is beyond me
the letter to TransNamib Mr Teetz clearly refered to our client as
being Jary Enterprises One Hundred Thirty Six cc.
It is Jary Enterprises One Hundred Thirty Six cc that applied to
TransNamib in 2004 to lease the piece of land and not Mr Garbade. In
that letter i.e. application to lease it is clearly stated that the
owner of Erf 1944 is Jary Enterprises and not Mr Garbade. Mr
Teetz is being untruthful when he informed the Court that he never
heard about Jary Enterprises One Hundred Thirty Six cc until when the
case came to Court. The letter by Stubenrauch also corroborates the
evidence of Mr Garbade that all the professionals knew that he was
acting on behalf of Jary Enterprises One Hundred Thirty Six cc and
that is why in that letter (from Stubenraunch) they stated that they
were acting on behalf of Jary Enterprises One Hundred Thirty Six cc
and not Mr Garbade. There is also the agreement with the architect
Bob Mould – which clearly states that the agreement was with
Jary Enterprises One Hundred Thirty Six cc and of course the unsigned
agreement exhibit “C” between Jary Enterprises One
Hundred Thirty Six cc and the plaintiff which he took to Mr Teetz but
There is also nothing in his (Mr Garbade) conduct which conveyed to
the plaintiff that he acted in his personal capacity. Exhibit “A”
was addressed to ‘the manager’ which confirmed the
verbal agreement of appointing the Plaintiff as consulting civil and
structural engineers to the Am Weinberg project.
addressing the letter to ‘the manager’ it clearly showed
that the plaintiff represented by Mr Roland understood that Mr
Garbade was the manager of the AM Weinberg wellness Centre and not
the owner and or acting in his personal capacity. The concise Oxford
dictionary (ninth edition) defines the word manager as a
person controlling or administrating a business or part of a
Mr Teetz also testified that: ‘We always dealt with Mr Garbade.
There was never somebody else’. A close corporation can never
act on its own, a natural person(s) must act on behalf of the close
corporation and in this case it was Mr Garbade who was the manager
and acting on behalf of the close corporation and that is why they
always dealt with him.
regard to the evidence adduced and on the balance of probabilities ,
I am satisfied that Mr. Garbade was acting on behalf of Jary
Enterprises One Hundred Thirty Six cc and not in his own personal
 The Plaintiff
relies on the doctrine of estoppel in the event that the special plea
Rabie and Sonnekus (The law of Estoppel in South Africa JC
Sonnekus and Rabie 2000 P3) define the doctrine of stopped, as
follows “the doctorine as applied in the courts of South Africa
may be said to amount to the following, namely; that where a person
(the representor) has by his words or conduct made a blameworthy
representation to another person (the representee) and the latter
believing the representation to be true, acted thereon and would
suffer prejudice if the representor were permitted to deny the truth
of the representation made by him, the representor may be estopped,
that is precluded, from denying the truth of his
representation if the maintaining of the representation will not be
in conflict with public policy.”
elements of the doctrine are:
Representation by word or conduct of a certain factual position made
by the representor to the representee. In Eysselinck V Standard
Bank Namibia Ltd 2004 NR 246-252D 253C O’linn JA
relied on a quotation from Rabie the law of Estoppel in South
Africa law and held that: “as will be shown below, in South
African law an estoppel can be based on a representation by conduct
if the representee can show that he reasonably understood the
representation in the sense contended for by him and that the
representor should have expected that his conduct could mislead the
representee. It is not required that he must show the conduct in
issue amounted to a precise and unequivocal representation.”
The onus rests on the plaintiff, who relies on estoppel to plead and
prove its essentials
“A representee can only base an estoppel on a representation
made by conduct if he can show
(a) that he
reasonably understood the representation in the sense contended for
by him and;
(b) that the
representor should reasonably have expected that his conduct could
mislead the representee (c)the test in both (a) and (b) is objective,
the norm in (a) being the understanding of a reasonable man and (b)
the expectation of a reasonable man.
PJ Rabie The Law of Estoppel in South Africa P37.
a representation is made by silence it is important that the silence
should have occurred when there was a duty on the person whom it is
sought to estop to speak or act, Rabie states that: “as
to when such a duty exists, the law appears to be that the duty
arises when the person whom it is sought to estop should reasonably
have expected, in the light of the relationship existing between
himself and the other party concerned and all the relevant facts of
the case, that his failure to speak or act could mislead and cause
prejudice to the other party” see M Pupkewitz & Sons
(Pty) Ltd t/a Pupkewitz Megabuilt v kutz 2008 (2) NR 775 sc at 784,
Another requirement is that the party acted on the correctness
the facts as presented and that the party, who acted or failed to
act, did so to his detriment.
The evidence adduced was that it was the plaintiff who addressed Mr
Garbade as “the manager” of AM Weinberg when confirming
the verbal appointment as structural and civil engineers to the
project. Mr Teetz in his evidence also testified that Mr Garbade when
addressed as ‘the manager’ was acting in a representative
the plaintiff understood from the very beginning that Mr Garbade was
acting in a representative capacity. There was no duty on him to
rectify that as the plaintiff correctly understood that he was acting
in a representative capacity. There was no letter or documentation
from Mr Garbade stating that he was acting in his personal capacity.
the contrary, Mr Teetz in his letter to TransNamib referred to the
client as Jary Enterprises One Hundred and Thirty Six cc and not Mr
Garbade. The plaintiff addressed letters to Mr and Mrs Garbade
because they were acting on behalf of the close corporation.
Corbett submitted that the defendant admitted liability in evidence
for the plaintiff’s claim. He referred to the evidence by the
plaintiff when he said “there has never been on my intention
that or our intention as I later say now that the fees of the account
of Buhrmann and Partners would not be paid” He also referred to
the evidence by the defendant that he undertook to pay off the full
account of the plaintiff in the amount of N$ 1287,530.73 by way of
installments of N$20 000.00 per month. Nowhere in his evidence did Mr
Garbade say that he is liable to pay the account in his personal
capacity, he was always acting in a representative capacity.
Corbett also submitted that numerous letters from the plaintiff were
addressed to Mr Garbade where reference was made to him as the client
and that in no such instances did Mr Garbade ever wrote back or even
communicate to plaintiff that this was incorrect and that the client
should be referred to as Jary Enterprises.
I pointed out there was no duty on Mr Garbade to correct that because
of the very first letter from the plaintiff confirming the
appointment of the plaintiff as civil and structural engineers
addressed to “the manager” and that showed that the
plaintiff knew or understood from the very beginning that Mr Garbade
was acting in a representative capacity.
Garbade did not make any representation in writing or by his words or
conduct conveying to the plaintiff that he was acting in his personal
capacity. In all the circumstances the defence of estoppel cannot
In the result, I
make the following order:
1. the special
plea raised by the defendant is upheld.
2. the defence of
estoppel raised by the plaintiff is dismissed.
3. the plaintiff
is ordered to pay the costs of the defendant, such costs to include
the costs of one instructing and one instructed counsel.
ON BEHALF OF
PLAINTIFF: ADV. CORBETT
LORENTZ ANGULA INC.
ON BEHALF OF
THE DEFENDANT: ADV MOUTON
KOEP & PARTNERS