CASE NO.: A 261/10
IN THE HIGH COURT OF
In the matter between:
THOMAS JOHAN BROWN VAN
FOUR WHEEL DRIVE
MEGASTORE CC …...............................1ST
CORAM: MILLER, AJ
Heard on: 20 October
2011; 20 February 2012
Delivered on: 20 March
 The applicant and the second respondent are both medical
practitioners practicing as such in Windhoek. They practised in
partnership from the year 2003, until the year 2007, when the
partnership was terminated.
 It is apparent that
the erstwhile relationship between them had deteriorated without any
hope that it may be restored in future.
 The first respondent
is a Close Corporation of which the applicant and the second
respondent, each hold 50 percent of the membership of the first
respondent. The applicant in fact acquired his membership during June
 Two immovable
properties are registered in the name of the first respondent. They
Erf 558, Olympia held by Deed of Transfer 4964/2003 dated 15 August
Erf 225, Erospark held by Deed of Transfer 5177/2006, dated 25 July
 It is thus apparent
that Erf 558 was acquired at a time when the applicant did not hold
any members’ interest in the first respondent. Erf 225 on the
other hand was acquired when both the applicant and the second
respondent were members of the first respondent.
 Since the dissolution
of the partnership the applicant and the second respondent have been
unable to unravel the affairs of the partnership and as is after the
case in matters like these a process of litigation in this Court was
 On 3 December 2008
the second respondent issued summons against the applicant claiming
payment from the applicant, as defendant, of the sum of N$493, 965.19
together with interest thereon and costs. The cause of action relates
to an acknowledgement of debt the second respondent and the applicant
had signed on 13 April 2007 in favour of Nampharm (Pty) Ltd for the
sum of N$898, 791.77. The second respondent alleges that he was
called upon to and in fact paid the full amount to Nampharm (Pty)
Ltd. He thus claims from the applicant 50 percent of the amount he,
the second respondent, had paid.
 The applicant filed a
plea alleging that he signed the acknowledgement of debt due to
misrepresentations made by the second respondent. In any event he
pleads that his debt is a liability of the partnership and his
obligation to pay any portion thereof must await the final
dissolution of the partnership and a settlement of the partnership
books of account.
 In a counterclaim
filed together with his plea, the applicant seeks an order directing
the second respondent to render a full and proper account of the
income generated by the partnership and of the payment of the debts.
He further seeks a debotement of the accounts and payment of any
amounts due to him.
 The second
respondents’ response to this is that both the applicant and
himself had an equal duty to account to each other for the respective
practices conducted by them for and on behalf of the partnership.
Following an allegation that the applicant is not willing to satisfy
his reciprocal obligations the second respondent alleges that the
counterclaim is premature.
 This action is yet
to be enrolled for hearing. It certainly is ripe for hearing.
 I have dealt with
the action simply to illustrate that there is much unfinished
business between the former partners which await determination by
this Court in the future.
 It is against this
backdrop that the applicant, launched the present proceedings seeking
the following relief:
the first respondent be placed under provisional winding-up in the
hands of the Master of the above Honourable Court;
a rule nisi be issued calling upon all interested parties to
show cause, if any, on a date and time to be determined by this
Honourable Court, why:
Court should not order the final winding-up of the first respondent;
costs of this application should not be costs in the winding-up.
service of the rule nisi be effected as follows:
serving a copy thereof on the first respondent’s registered
a copy thereof in one edition of the Government Gazette and the
to the applicant such further and/or alternative relief as this
Honourable Court may deem fit.”
 The applicant
contends that due to the breakdown of the partnership it has become
just and equitable to wind up the first respondent.
 The response of the
respondents was to launch a counter application claiming the
leave to second respondent to refer to the parties as in Case Number
A261/10 (“the main application”).
Applicant cease to be a member of the First Respondent.
Erf 225, Erospark situated in the Municipal Area of Windhoek,
Registration Division “K”, Khomas Region measuring 1145
square meters be sold on the open market either by way of public
auction or through property agents for the approximate value thereof
determined by the average between one valuation by a valuator
appointed by Applicant, one by second respondent and another agreed
to by both valuators;
the balance outstanding under the Mortgage Bond No B6309/2006 in
favour of Standard Bank of Namibia Limited in respect of erf 225,
Erospark be paid in full from the proceeds of such sale;
the net proceeds after payment of the Mortgage Bond be divided in
half and the Applicant be paid out his share;
50% of the net proceeds after payment of the mortgage bond be paid
out to second respondent;
the cancellation of the aforesaid Mortgage Bond and underlying
that the costs of the main application as well as the costs of the
Counter Application be paid from the Applicant’s share;
and/or alternative relief.”
 At the heart of the
counter application lies an allegation by the second respondent that
Erf 558, was acquired by the first respondent at a time prior to the
applicant becoming a member of the first respondent. He alleges in
effect that the applicant and the second respondent expressly agreed
at the time when the applicant became a member that the applicants’
rights would not include any interest in Erf 558, but would be
limited to only Erf 225.
 Mr. Mouton who
appears for the respondents contend that this is an unresolved issue,
relating to the affairs of the partnership which together with the
other issues raised await adjudication before another court. This he
contends renders it premature to seek the winding up of the first
respondent and the application should be dismissed or stayed pending
the final determination of the pending trial.
 There is clearly a
close link between the affairs of the first respondent and those of
the partnership. The two properties were utilized to run two medical
practices on behalf of the partnership. The second respondent
conducted and presumably still conducts his practice from Erf 558 and
has done so since 2003. The applicant conducted a practice at Erf
225. In that sense the affairs of both become to some extent
 In considering
whether it is just and equitable to order the winding up of the first
respondent the onus is on the applicant to establish this on a
balance of probabilities.
 If he fails that
signals the end of the matter. If he does establish that requirement,
the court has to exercise a judicial discretion on broad principles
of law, equity and justice. Pienaar v Thusano Foundation &
Another 1992 (SA) 552 (BGD). “To put it another way, in
its process of reasoning, the Court is guided by “broad
conclusions of law, justice and equity; and is doing so it must take
into account compelling interests and determine them on the basis of
a judicial discretion of which “justice and equity” are
on integral port. The Court has to balance the respective interests
and tensions and counterbalance to compelling forces and resolve them
in a fair, proper and reasonable manner. (Per Friedman ADP in
Pienaar (supra) at p. 510 F).
 A breakdown of trust
and a loss of confidence between members of a close corporation, or
shareholders in a private company, has been held to make it just and
equitable to wind up the close corporation or company as the case may
 Non constat however
that such a result must inevitably follow: The Court’s
discretion is not diminished or ousted by that fact.
 I will still be
vested with the discretion to either refuse an order the winding up
the first respondent, or to stay these proceedings if there are facts
which warrant such a course of action.
 I have referred to
the pending litigation between the parties. It is no answer to say,
as the applicant does that the litigation does not involve the first
 Admittedly it does
not arise directly, but given the close link between the first
respondent and the partnership and the dispute concerning each
partners’ entitlement or otherwise relating to state of their
members interest in the first respondent, the issue does and will
arise albeit indirectly. These are matters which needs be resolved by
the court hearing the pending trial.
 A finding on that
issue may well make a difference as to whether the first respondent
should be wound up or whether the relief claimed in the counter
application should be granted instead.
 For the reasons I
make the following orders:
The application for the
winding up of the first respondent is stayed pending the final
determination of the proceedings instituted in Case (P) I 3884/08 in
the matter of Jordaan v van Wyk.
The costs will stand
over pending the finalisation of these proceedings.
ON BEHALF OF THE
APPLICANT: Mr. Obbes
ON BEHALF OF DEFENDANTS:
Instructed by: Francois
Erasmus & Partners