Nair v Chandler (13650/06) [2006] ZAGPHC 68; 2007 (1) SA 44 (T) (19 July 2006)

IN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)CASE NO:13650/2006DATE: 2/8/2006REPORTABLEIn the matter between:S JNAIRPLAINTIFFANDJWCHANDLERDEFENDANTJUDGMENTMAVUNDLA, J1.This isan opposedapplication for a summary judgment against the defendant.I consider it necessary to chronicle the particulars of claim before embarking on dealing with the summary judgment application.2.In his particulars of claim the plaintiff aversinparagraph 3that on or about 2 October 2003 and atJohannesburgthe parties entered into a written agreement.He attached as annexure B, a copy of the relevant agreement.3.The plaintiff further aversin the particulars of claimthat:3.1.the express alternatively implied , further alternatively tacit terms ofthe partnership agreement were thatthe parties formed apartnership to be known as Tip Top Productions Company toconduct and carry on business of public relations, advertising,marketing communications, consulting, event planning and celebritymanagement;3.2.the partnership was formed for the express purposes for event asSummer Vibes South Africa;3.3.The partnership commenced on 1 October 2003 and wouldcontinue until terminated;3.4.The initial capital contributions of the partners to the partnership would be as follows:3.4.1.The plaintiff—goodwill, business experience, work productand all event planning, promotions of movies and concerts;3.4.2.The

defendant—initial capital contribution and payment of all reasonable costs of the event known as Summer Vibes South Africa including but not limited to all cost related to the artist and promotion of the said event3.5.in the event of the plaintiff incurring liability, alternatively in theevent that the plaintiff expended money for thebenefitof the partnership, the defendant would forthwith reimburse the plaintiff.3.6.Pursuant to the conclusion of the partnership agreement the partiesproceeded with the planning of the event known as Summer Vibes South Africa, which event would include three concerts to be held inJohannesburg,DurbanandCape Townduring December 2003.3.7.Onor about 14 November 2003 and at the Defendant’s instance, the Plaintiff utilised Cachet Communications (Pty) Limited (now in liquidation) of which the plaintiffwas the sole director, to conclude awritten agreement withGearhouseSouth Africa (Pty) Limited (hereinafterreferred to asGearhouse)to provide inter alia the lights, audio, rigging, structures, crowd control, camera, etc forthe Summer Vibes South Africa events andGear Houserequired of the Plaintiff to stand personal surety.3.8.The services ofGearhousewere duly utilised for the benefit of the partnership, utilising Catchet as aforementioned and payment ofthe sum of R2 109 000,00became due toGear House.3.9.Pursuant to the Defendant’s obligation in favour of

the Plaintiff in terms of clause 3 of the partnership agreement the defendant made payment in favour of Gearhouse in thensumof approximately R1 031 732,00.3.10.In order to liquidate the balance outstanding in favour ofGear Houseand in terms of the Defendant’s express obligations in terms of clause 3 of the partnership agreement in favour of thePlaintiff, the Defendant furnished, upon presentation by the Plaintiff to the Defendant of the invoices fromGearhouseaddressed to Cachet, as payment, two further cheques of R550 018, 08 and R527 250,00 on 10December 2003 and 11 December 2203 respectively in favour of Gearhouse. The said cheques were both referred to drawer;3.11.During March 2004 under case no.6894/2004 (WLD)Gearhouse soughtpayment from Plaintiff qua surety in the sum ofR1 054 000, 00. The matter was opposed but the Court found in favour of GearHouse.3.12.The Defendant breached the terms of the partnership agreement by failing to pay the plaintiff notwithstanding demand.3.13.On the 31 January 2006 the Plaintiff, as he was entitled to, terminated the partnership agreement alternatively hereby cancels same.3.14.The Plaintiff has complied with all his obligations in terms of the partnership agreement, and consequently he claims from the Defendant payment of the amount of R1 054 000, 00which sum has become due and payable.4.The defendant duly entered an appearance to defend,

whereupon thePlaintiffbrought this application for summary judgment.5.ThePlaintiff insupport ofthe applicationfor summaryjudgment hasfiled anaffidavit deposedto by himself wherein heverifies thecause ofaction. He further states thatin his opinion the defendant does not have abona fide defenceto the action, and that the notice to defend has beenentered solely for the purposes of delay.6.The defendanthas filed an affidavit deposed to by himself in terms ofwhichhe resistthe summary judgment.7.In the matter ofEvelyn Haddon & Co Ltd v Leojanko (Pty ) LtdSA 662(OPD)at 666A the court cited the matter of Mowschenson &Mowschenson vMercantile Acceptance Corporation of SA Ltd 1959(3)SA 362 (W) at 366 where Marias Jsaid that:“The proper approach appears to me to be one which keeps important fact in view that the remedy for summary judgment is an extraordinary remedy,and avery stringent one, inthat it permits a judgment to be given without trial. It closes the doors of the Court to the defendant. (See the case of Symon & Co., supra). That can only be done if there is no doubt but that the plaintiff has an unanswerable case.”, vide alsoBreitenbach v Fiat S.A. (EDMS) Bpk1976 (2) SA 226at 229where the Court referred to the Moswschenson case supra and proceeded to cite fromShepstone vShepstone1974 (2) SA 462(N) at 467E-H where Miller Jsaid that:“The Court will not be disposed to grant summary

judgment where, giving due consideration to the information before it, it is not persuaded that the plaintiff has an unanswerable case” and that “…a defendant may successfully resist summary judgment where his affidavit shows that there is a reasonable possibility that the defence he has advanced may succeed on trial.”In the Evelyn Haddon & Co. matter (supra) the Court at 667 G said that;“By die oordeling van die posisie sal ek ook ingedagte hou dat ek nie op oorwig van waarskynlikhede moet oordeel of die verweer suksesvolsal wees nie”.8.In the matter ofTesven CC and Another v South African Bank ofAthens2001 (1)SA 268SCA at 275 Hthe Court said:2“. It has to be remembered that the relief sought by the plaintiff in this matter is summary judgment. InMaharaj v Barclays National Bank Ltd1976 (1) SA 418(A) at 423 F – G, Corbett J Areferred to the ‘extraordinary and drastic nature’ of the remedy of summary judgment and said that ‘ (t) he grant of the remedy is based upon the supposition that the plaintiff’s case is unimpeachable and that the defendant’s defence is bogus or bad in law. Later( at 426 A – 426 E ) Corbett JAsaid the following:‘One of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the Court by affidavit that he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material facts

alleged by the Plaintiff in his summons, the Court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of the party or the other. All that the Court enquires into is ‘:(a)whether the defendant has “fully” disclosed the nature and grounds of his defence and the material facts upon which it is founded;(b)Whether on the facts so disclosed the defendant appears to have, as to the whole or part of claim, a defence which is both bona fide and good in law. If satisfied on these matters the court must refuse summary judgment, either wholly or in part, as the case may be. The word “fully”,as used in the context of the Rule (and its predecessors), has been the cause of some judicial controversyin thepast. It connotes, in my view, that, while the defendant need not deal exhaustively with the facts and the evidence relied upon to substantiate them, he must at least disclose his defence and the material facts upon which it is based with sufficient particularity and completeness to enable the Court to decide whether the affidavit discloses a bona fide defence ( see, generally, herbDyers (Pty) Ltd v Another1965 (2) SA 914(N) , Arend and another v Astra Furnishers (Pty) Ltd[1974 (1) SA 298(C) at 303 – 4 ; Shepstone v Shepstone1974 (2) SA 462(N). At the same time the defendant is not expected to formulate his opposition to the

claim with the precision that would be required of a plea, nor does the Court examine it by the standards of pleading (Estate Potgieter v Elliot1948(1) SA 1084(C) at 1089, Herb Dyers case supra at 32.9.Mr. C. J. C. Nel on behalf of the plaintiff contended that that the defendantbreached the terms of the partnership agreement by failing to pay theplaintiff on demand the amount of R1 054 000,00 which the plaintiff wasordered to pay to GearHouseas the result of the cheques the defendanthad issued and which qheques were subsequently dishonoured. He saysthat the plaintiff exposed himself via Cachet for a debt, at the instance ofthe defendant for which the defendant was contractually expressly liableinter se the parties. He says that it was the defendant’s reciprocalobligation to refund the plaintiff and that the extent of the liability of thedefendant to the plaintiff is to pay that sum which the defendant ought tohave paid himself in the first instance and that therefore the defendantremains a debtor to the plaintiff.10.Mr Nel further contends that the defendant has raised two defences:10.1.Atechnical defence; and10.2.Onthemerits,the defendant avers that the partnership agreementwas never implemented and that two oral agreements thereafterwere concluded.11.The defendant in his affidavit denies that he is indented to the plaintiff inthe amount claimed or at all, as he has a bona

fide defence to the claim ofthe plaintiff He further denies that he has caused an appearance to defendthe action to be filed solely to delay. He says that he has been advisedthat the plaintiff’s particulars of claim does not disclose a cause of actionalternatively lacks sufficient averments to disclose a cause of action inthat:(a)it is not alleged that the partnership, which the plaintiff alleges existed pursuant to annexure B to the plaintiff’s particulars of claim, was wound-up (all that is alleged is that he alleged partnership was terminated)(b)partners as a matter of law, are not, as regards partnership dealings, considered debtor and creditor inter se until such time as he partnership is wound-up;(c)ThePlaintiff, as surety for the company, discharged the debt of such company. It was the company which had a claim, on the plaintiff’s version, against the partnership. The plaintiff, as surety of such company which contracted with the partnership, has no claim against the partnership but only a right of recourse against thecompany as the principal debtor. Only the company could have a claim againstthe partnership. In the absence of a cession of such claim (which is no longer possible as the company has been liquidated) the plaintiff has no cause of action against the partnership or himself, the defendant as a partner.12.Mr. Nel has submitted that the plaintiff as apartner

does have the right toclaim from the defendant through thepro socio actioand that it isnotnecessary for the partnership to be wound up nor foran account of thepartnership to be preparedespecially sine the amount is readilydeterminable. In this regard he hascited fromthematter ofRobson vTheron1978 (1)843 at849Gthefollowing passage:“Theactio pro sociowas a personal action which arose from thepartnership agreement. In the first place it could be used while thepartnershipstill existed by apartneragainst aco-partner to enforcefulfillmentof personal obligations (praestationes personales) arising out ofthe partnership agreement and business without the object of dissolvingthe partnership.Secondly theactio pro sociocould alsobe brought by a partner againsthis co-partner for the settlement or adjustment of account s inter seincluding the fulfilment of personal obligations (praestationes personales)arising out of the partnership agreement and business with the object ofdissolving the partnership.”He further contends that it is notnecessary underthe circumstances ofthis case to have the partnership wound up in order for the plaintiff to havethe relief he seeks. In this regard he relies on the case ofLoots vNiewenhuizen and Another1997 (1) SA 361(T) He has furthersubmitted that one partner may sue the other partner for reimbursement ofmoney spenton behalf of the partnership. In this regard

he refers to thematter ofPataka v Keef and Another1947 (2) SA 962(AD)aswell asJECelliersv C F Ziervoegel 1893 H 225.Ohasthe partnership.13.Mr Nel further submitsthat thedefendant does not have a bona fidedence. In this regard he says that the defendant has stated in paragraph5.3 of his affidavitthat theagreement was never implemented. However,against this alleged non implementation the defendant is still prepared toadvance money to the plaintiffwhilst denying existence of an agreement.14.On the other hand Mr. South has submitted that the Court must firstdecide whether there was any agreement between the parties andwhether it was implemented. He says there was no such agreementbecause there is no where averred that there was a banking accountopened for the alleged partnership. He says that there was a second oralagreement that the parties entered into which was a joint ventureagreement for the sharing of profit. He further submits that it is commoncause that the agreement was terminated .He further contends thatCachet had a claim against the partnership and that the plaintiff had stoodsuretyin his personal capacity for Cachet. He further contends that theprosocio actiohad to be employed during the existence of the partnershipand it was common cause that the partnership had already beenterminated , on the version of the plaintiff.15.In the Robson v Theron matter, supra, at

page855H-856G Joubert J.A.says that:“(A)theprinciples of common law underlying theactio pro sociomay be conveniently summarised as follows:1.This action may be instituted by a partner against a co-partner during the existence of the partnership for specific performance in terms of the partnership agreement and/ or fulfilment of personal obligation (praestationes personales) arising out of partnership agreementbusiness;.2.Where the partnership agreement provides for (or the parties subsequently agree upon) the dissolution of the partnership and the manner in which the partnership is to be liquidated and wound – up specific performance thereof may be claimed by means of this action.3Where neither the partnership agreement nor a subsequent agreement between the partners provides for the dissolution of the partnership and the manner in which the partnership is to be liquidated and wound – up this action may in general (subject to any stipulation for the duration of the partnership or any other relevant stipulations) be brought by a partner to have the partnership liquidated and wound – up. The Court in the exercise of its wide equitable discretion may appoint a liquidator to realize the partnership assets for the purpose of liquidating partnership debts and to distribute the balance of the partnership assets or their proceeds among the partners. Potheir, op, cit sec, cit sec

162.4Where a partnership has been dissolved a partner may avail himself of this action against his co-partners to claim distribution of any undistributed partnership asset or assets :“Each of the former partners can alone demand a distribution of the effects which remain in common after the dissolution of the partnership”.This obviously covers the situation where, after dissolution of a partnership, a continuing partner retains possession of partnership assets which has not been included in a distribution of the partnership assets. Hence a retiring partner may institute this action against the continuing partner to claim a distribution of the partnership asset in question.5.A Courthas a wide equitable discretion in respect of the mode of distribution of partnership assets, having regard, inter alia, to the particular circumstances, what is most to the advantage of the partners and what they prefer.6.The various modes of distribution of partnership assets are fully dealtwith by Pothier , op cit., secs 161 -178.”16.In the case ofShingadia v Shingadia1957 (3) SA 195, where thepartnership that consisted of four brothers, had let its immovable propertyto one of the partners at an amount of R100,00 per month and the saidpartner having been in arrears in the amount of R800,00 was sued by thethree remaining partners in the name of the partnership, the Court heldthat the defendant

partner was also oneofthe plaintiffs and that thereforethe three plaintiffs cannot in the name of the partnership maintain theaction. The Court at 197 H quoted whatWarringtonsaid, namely:“ A partner cannot be a creditor of or a debtor to his firm or sue his firm orbe sued by it, in as much as the English law does not recognise theexistence of a firm as distinct from the members of it; and further in anaction by one or more partners, whether using the name of the firm underOrder 48 A or not, against a co-partner alleging thatthat money is duefrom the defendant to the plaintiffs in connection with the affairs of thefirm, whether the claim arises in respect of transactions during thecontinuance of the partnership, or in the course of he winding-up of itsaffairs after dissolution, the only relief which the plaintiff could obtainwould be an account of the dealings and transactions of the partners” TheCourtsaid that these observations are identical with the principles of ourlaw.17.In the present case ,on the version of the plaintiff, the partnership hasbeen terminated.This then means that his case does not fall within thefirst point mentioned by Joubert, J.A in the Robson v Theron casesince itis not brought during the existence of the partnership, (see paragraph 15supra under (A)1).18.The agreement attached by the plaintiff as annexure B provides for thewinding up and termination of

the partnershipthrough clause 14.Thisclause provides, inter alia, that the assets of the partnership business shallbe used and distributed in the following order:‘(a)To pay and provide for the payment of all partnership liabilities andliquidating expenses and obligations;(b)...(c)to make the income accounts of the partners proportionate to theirrespective shares in partnership profits;(d)To discharge the balance of the income accounts of the partners;(e)To distribute to the partners in proportion to their interest in the capital ofthe partnership;”The second point articulated by Joubert is through this pro socio to claimfor specific performance of what is tabulated in the winding up andtermination clause 14 of the agreement. The plaintiff’s claimdoes not fallwithin this point since he is not claiming for specific performance of what iscontained in the winding up clause 14.Neither does the plaintiff’s claim fallunder point 3since there is provision for winding up in the agreement.Under point point 4, according to Joubert AJ, thisaction isavailable to apartner where the partnership has been dissolved, to claim distribution ofany undistributed partnership assets. In this regard it apposite to refer tothe matter ofOlivier v Stoop1978 (1) SA 119at 203Gwherethe Courtsaid that although the partnership is dissolved, but concerning accountingbetween them and the world at large, the

partnership still remains in forceuntil it has been finally liquidated. Before the partnership is liquidated theremust first be accounting by each partner to the partnership. If the partiescannot agree,then theremust be a liquidator appointed who, once theassets of the partnership have been made liquid, will first pay the debts ofthe partnershipand if there is anything remaining then divide thisproportionately to their respective shares.In the Robson v Theron matter(supra) at 853D it is stated that for purposes of distribution of thepartnership assets an account must first be framed of what each partnerowes the partnership and of what is due to each partner by thepartnership. The amount of the sum for which a partner is a debtor to thepartnership should be set off against those for which he is a creditor.20.Mr.South has pointedout,quit correctlyso,that in thePataka v Keefeand Another matter (supra) the Appellate Division left undecidedthequestionwhether a partner can during the existence of the partnershipsue his partner for reimbursement of money spent by the other partner forthe affairs or business of the partnership. He contends that after thedissolution of the partnership there must first be accounting. In De Wetand YeatsKontraktereg en Handelsreg4thedition at page 414 -415 it isstated inter alia that at the termination of a partnership the partners mustall together

institute action in regard to the collection of the debts ofthepartnership, unless there has been a cession of the rights of thepartnership to the other partner.At page 399 the learned authors say thatsometimestheactio pro sociocan be used by one partner to claimsomething elseeither than moneyfrom the other partnersarising from thepartnership agreement. However, if it is payment of money that is claimedfrom the other partners, then there must first be accounting.21.In the matter ofTurkstra v Goldberg and Another1960 (1) SA512(T)at513H-514the Court said that in the event the plaintiff had intended tosue two individuals as the members of a partnership which had beendissolved, it would be essential to allege that the partnership has beendissolved.“In the absence of such anallegation .the summons is also badon that basis.…any amendment can be allowed by which an allegation of dissolution isinserted. A claim against one partner on a partnership obligation containedin a written document on the ground that the partnership has beendissolved is not, …a liquid claim capable of supporting a claim forprovisional sentence. Dissolution of partnership is not a “simple condition”upon which a claim arises within the meaning of that term inUnion ShareAgency and Investment Ltd v Spain,1928 A.D. 74at 78 to 79.Further,this is not a case of payment of an obligation specified in a writtendocument

being subject tothe fulfilment of a simple condition. Theobligation itself to pay the whole debt as an ex-partner in a dissolvedpartnership was subject to a condition that the partnership had been fullydissolved; for the importance of this distinction seeInglestone vPereira1939 W.L.D. 55at 62.22.In the light of the above authority, I am of the view that there is merit in thecontention that the plaintiff must not only allege in his particulars of claimthat the partnership has terminated, he must also allege that thepartnership has since been winded up. This essential averment has notbeen done in the instant case.I am of the view that it is inappropriate togrant summary judgment under such circumstances as in casu.23.In the light of the above authorities, I am therefore of the view that itcannot be said that the defence raised by the defendant is not bona fideraised nor are there no triable issues. I am of the view that it is notnecessary for me to deal with the rest of the issues that have been raisedin this matter. If there is a singular defence that that is capable of beingadjudicated upon on trial, and which has the potential of striking at thefundamental of the plaintiff’s case, thee summary judgment cannot begranted.24.Mr South has submitted that the plaintiff has been unreasonable ininsisting to continue with thisapplication in the light of the defencesraised in the

defendant’s affidavit and that the Court should show itsdispleasure and mulct the plaintiff with the cost of day of the arguing theapplication and that the rest of the cost in the cause. Mr. Nel has on thecontrary submitted that it is customary that in such matters the Courts willorder that the costs be the cost in the cause and that there is no specialreason to mulct the plaintiff. I see no reason that the plaintiff should bepunished in not having merely agreed to having leave to defend grantedto the defendant. I am of the view that the issues that have been raised inthis matter are not the common issuesthat are encountered every daywhere one can say that the plaintiff should have known better. However,25.In the premises the following order is made:(a)Summary judgment is refused;(b)Leaveto defend the action is granted to the defendant.(c)The cost shall be cost in the cause.N.M. MAVUNDLAJUDGE OF THE HIGH COURTHEARD ON THE:20/06/2006DATE OF JUDGMENT: 19/07/06APPLICANT`S ADV:CJC NEL instructed by: -APPICANT`S ATT:ITZIKOWITZ & ASSOCIATED c/o JACOBSON & LEVY INC,PRETORIADEFENDANT`S ADV: instructed by: -DEFENDANT`S ATT:ROUTLEDGE MODISE MOSS,PRETORIA

IN THE HIGH COURT OF

SOUTH AFRICA

(

TRANSVAAL

PROVINCIAL DIVISION)

CASE NO:13650/2006DATE: 2/8/2006

CASE NO:

13650/2006

DATE: 2/8/2006

REPORTABLE

In the matter between:

S J

NAIR

PLAINTIFF

AND

J

W

CHANDLER

DEFENDANT

JUDGMENT

MAVUNDLA, J

1.

This isan opposedapplication for a summary judgment against the defendant.I consider it necessary to chronicle the particulars of claim before embarking on dealing with the summary judgment application.

This is

an opposed

application for a summary judgment against the defendant.

I consider it necessary to chronicle the particulars of claim before embarking on dealing with the summary judgment application.

2.

In his particulars of claim the plaintiff aversinparagraph 3that on or about 2 October 2003 and atJohannesburgthe parties entered into a written agreement.He attached as annexure B, a copy of the relevant agreement.

In his particul

ars of claim the plaintiff aver

s

in

paragraph 3

that on or about 2 October 2003 and at

Johannesburg

the parties entered into a written agreement.

He attached as annexure B

, a copy of the relevant agreement.

3.

The plaintiff further aversin the particulars of claimthat:

The plaintiff furt

her aver

in the particulars of claim

that

:

3.1.the express alternatively implied , further alternatively tacit terms ofthe partnership agreement were thatthe parties formed apartnership to be known as Tip Top Productions Company toconduct and carry on business of public relations, advertising,marketing communications, consulting, event planning and celebritymanagement;

3

.1

.

the express alternatively implied , further alternatively tacit terms of

the partnership agreement were that

the parties formed a

partnership to be known as Tip Top Productions Company to

conduct and carry on busines

s of public relations, advertising

,

marketing communications, consulting, event planning and celeb

rity

management;

3.2.the partnership was formed for the express purposes for event asSummer Vibes South Africa;

3.2

the partnership was formed for the express purposes for event as

Summer Vibes South Africa;

3.3.

The partnership commenced on 1 October 2003 and wouldcontinue until terminated;

The partnership commenced on 1 October 2003 and would

continue until terminated

;

3.4.

T

he initial capital contributions of the partners to the partnership would be as follows:

3.4.1.

The plaintiff—goodwill, business experience, work productand all event planning, promotions of movies and concerts;

The plaintiff—goodwill, business experience, work product

and all event planning, promotions of movies and concerts;

3.4.2.

The defendant—initial capital contribution and payment of all reasonable costs of the event known as Summer Vibes South Africa including but not limited to all cost related to the artist and promotion of the said event

3.5.

in the event of the plaintiff incurring liability, alternatively in theevent that the plaintiff expended money for thebenefitof the partnership, the defendant would forthwith reimburse the plaintiff.

in the event of the plaintiff incurring liability, alternatively in the

event that the plaintiff expended money for the

benefit

of the partnership, the defendant would forthwith reimburse the p

lai

ntiff.

3.6.

Pursuant to the conclusion of the partnership agreement the partiesproceeded with the planning of the event known as Summer Vibes South Africa, which event would include three concerts to be held inJohannesburg,DurbanandCape Townduring December 2003.

Pu

r

suant to the conclusion of the partnership agreement the parties

proceeded with the planning of the event known as Summer Vibes South Africa, which event would include three concerts to be held in

Durban

and

Cape Town

during December 2003.

3.7.

Onor about 14 November 2003 and at the Defendant’s instance, the Plaintiff utilised Cachet Communications (Pty) Limited (now in liquidation) of which the plaintiffwas the sole director, to conclude awritten agreement withGearhouseSouth Africa (Pty) Limited (hereinafterreferred to asGearhouse)to provide inter alia the lights, audio, rigging, structures, crowd control, camera, etc forthe Summer Vibes South Africa events andGear Houserequired of the Plaintiff to stand personal surety.

On

or about 14 November 2003 and at the Defendant’s instance, the Plaintiff utilised Cachet Communications (Pty) Limited (now in liquidation

) of which the plaintiff

was the sole director, to conclud

e a

written agreement with

Gearh

ouse

South Africa (Pty) Limited (hereinafter

referred to as

)

to provide inter alia the lights, audio, rigging, structures

, crowd control, camera, etc for

the Summer Vibes South Africa events and

Gear House

required of the Plaintiff to stand personal surety.

3.8.

The services ofGearhousewere duly utilised for the benefit of the partnership, utilising Catchet as aforementioned and payment ofthe sum of R2 109 000,00became due toGear House.

The services of

were duly utilised for the benefit of the partnership, ut

i

lising Catchet as aforementioned and payment of

the sum of R2 109 000,00

became due to

3.9.

Pursuant to the Defendant’s obligation in favour of the Plaintiff in terms of clause 3 of the partnership agreement the defendant made payment in favour of Gearhouse in thensumof approximately R1 031 732,00.

Pursuant to the Defendant’s obligation in favour of the Plaintiff in terms of clause 3 of the partnership agreement the defendant made payment in favour of Gear

house in then

sum

of approximately R1 031 732,00.

3.10.

In order to liquidate the balance outstanding in favour ofGear Houseand in terms of the Defendant’s express obligations in terms of clause 3 of the partnership agreement in favour of thePlaintiff, the Defendant furnished, upon presentation by the Plaintiff to the Defendant of the invoices fromGearhouseaddressed to Cachet, as payment, two further cheques of R550 018, 08 and R527 250,00 on 10December 2003 and 11 December 2203 respectively in favour of Gearhouse. The said cheques were both referred to drawer;

In order to liquidate the balance outstanding in favour of

and in terms of the Defendant’s express obligations in terms of clause 3 of the partnership agreement in favour of the

Plaintiff

, the Defendant furnished, upon presentation by the Plaintiff to the Defendant of the invoices from

addressed to Cachet, as payment, two further cheques of R550 018, 08 and R527 250,00 on 10

December 2003 and 11 December 2203 respectively in favour of Gear

h

ouse. The said cheques were both referred to drawer;

3.11.

During March 2004 under case no.

6894/2004 (WLD)

Gear

ouse sought

payment from Plaintiff qua surety in the sum of

R1 054 000

, 00

. The matter was opposed but the Court found in favour of GearHouse.

3.12.

The Defendant breached the terms of the partnership agreement by failing to pay the plaintiff notwithstanding demand.

The Defendant breached the terms of the partnership agreement by failing to pay the plaintiff notwithstanding demand

3.13.

On the 31 January 2006 the Plaintiff, as he was entitled to, terminated the partnership agreement alternatively hereby cancels same.

3.14.

The Plaintiff has complied with all his obligations in terms of the partnership agreement, and consequently he claims from the Defendant payment of the amount of R1 054 000, 00which sum has become due and payable.

The Plaintiff has complie

d with all his obligations in ter

ms of the partnership agreement

, and consequently he claims from the Defendant payment of the amount of R1 054 000

which sum has become due and payable.

4.The defendant duly entered an appearance to defend, whereupon the

4

The defendant duly entered an appearance to defend, whereupon the

Plaintiffbrought this application for summary judgment.

brought this application for summary judgment

5.ThePlaintiff insupport ofthe applicationfor summaryjudgment hasfiled anaffidavit deposedto by himself wherein heverifies thecause ofaction. He further states thatin his opinion the defendant does not have abona fide defenceto the action, and that the notice to defend has beenentered solely for the purposes of delay.6.The defendanthas filed an affidavit deposed to by himself in terms ofwhichhe resistthe summary judgment.7.

5.

The

Plaintiff in

support of

the application

for summary

judgment has

filed an

affidavit deposed

to by himself wherein he

verifies the

cause of

action. He further states that

in his opinion the defendant do

es not have a

bona fide defence

to the action, and that the notice to defend has been

entered solely for the purposes of delay.

6.

The defendant

has filed an affidavit deposed to by himself in terms of

which

he resist

the summary judgment

7.

In the matter ofEvelyn Haddon & Co Ltd v Leojanko (Pty ) LtdSA 662(OPD)at 666A the court cited the matter of Mowschenson &Mowschenson vMercantile Acceptance Corporation of SA Ltd 1959(3)SA 362 (W) at 366 where Marias Jsaid that:

In the matter of

Evelyn Haddon & Co Ltd v Leo

janko (Pty ) Ltd

SA 662

(OPD

at 666

A the court cited the matter of Mowschenson &

Mowschenson v

Mercantile Acceptance Corporation of SA Ltd 1959

(3)

SA 362 (W) at 366 where Marias J

said that:

“The proper approach appears to me to be one which keeps important fact in view that the remedy for summary judgment is an extraordinary remedy,and avery stringent one, inthat it permits a judgment to be given without trial. It closes the doors of the Court to the defendant. (See the case of Symon & Co., supra). That can only be done if there is no doubt but that the plaintiff has an unanswerable case.”, vide alsoBreitenbach v Fiat S.A. (EDMS) Bpk1976 (2) SA 226at 229where the Court referred to the Moswschenson case supra and proceeded to cite fromShepstone vShepstone1974 (2) SA 462(N) at 467E-H where Miller Jsaid that:

“The proper approach appears to me to be one which keeps important fact in view that the remedy for summary judgment is an extraordinary remedy,

and a

very stringent one, in

t

hat it permits a judgment to be given without trial. It closes the doors of the Court to the defendant. (See the case of Symon & Co., supra). That can only be done if there is no doubt but that the plaintiff has an unanswerable case.”, v

ide also

Breitenbach v Fiat S.A. (

EDMS) Bpk1976 (2) SA 226at 229

1976 (2) SA 226

where the Court referred to the Moswschenson case supra and proceeded to cite from

Shepstone v

Shepstone1974 (2) SA 462(N) at 467E-H where Miller J

1974 (2) SA 462

“The Court will not be disposed to grant summary judgment where, giving due consideration to the information before it, it is not persuaded that the plaintiff has an unanswerable case” and that “…a defendant may successfully resist summary judgment where his affidavit shows that there is a reasonable possibility that the defence he has advanced may succeed on trial.”In the Evelyn Haddon & Co. matter (supra) the Court at 667 G said that;

“The Court will not be disposed to grant summary judgment where, giving due consideration to the information before it, it is not persuaded that the plaintiff has an unanswerable case” and that “…a defendant may successfully resist summary judgment where his affidavit shows that there is a reasonable possibility that the de

fe

nce he has advanced may succeed on trial.”

In the Evelyn Haddon & Co. matter (supra) the Court at 667 G said that;

“By die oordeling van die posisie sal ek ook ingedagte hou dat ek nie op oorwig van waarskynlikhede moet oordeel of die verweer suksesvolsal wees nie”.8.

“By die oordeling van die posisie sal ek ook ingedagte hou dat ek nie op oorwig van waarskynlikhede moet oordeel of die verweer suksesvol

sal wees nie”

8.

In the matter ofTesven CC and Another v South African Bank ofAthens2001 (1)SA 268SCA at 275 Hthe Court said:

Tesven CC and Another v South African Bank of

Athens

2001 (1)

SA 268SCA at 275 H

the Court said:

2

“. It has to be remembered that the relief sought by the plaintiff in this matter is summary judgment. InMaharaj v Barclays National Bank Ltd1976 (1) SA 418(A) at 423 F – G, Corbett J Areferred to the ‘extraordinary and drastic nature’ of the remedy of summary judgment and said that ‘ (t) he grant of the remedy is based upon the supposition that the plaintiff’s case is unimpeachable and that the defendant’s defence is bogus or bad in law. Later( at 426 A – 426 E ) Corbett JAsaid the following:

“

. It has to be remembered that the relief sought by the plaintiff in this matter is summary judgment. In

Maharaj v Barclays National Bank Ltd1976 (1) SA 418(A) at 423 F – G, Corbett J A

1976 (1) SA 418

referred to the ‘extraordinary and drastic nature’ of the remedy of summary judgment and said that ‘ (t) he grant of the remedy is based upon the supposition that the plaintiff’s case is unimpeachable and that the defendant’s defence is bogus or bad in law. Later

( at 426 A – 426 E ) Corbett JA

said the following:

‘One of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the Court by affidavit that he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material facts alleged by the Plaintiff in his summons, the Court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of the party or the other. All that the Court enquires into is ‘:(a)

‘One of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the Court by affidavit that he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material facts alleged by the Plaintiff in his summons, the Court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of the party or the other. All that the Court enquires into is ‘:

(a)

whether the defendant has “fully” disclosed the nature and grounds of his defence and the material facts upon which it is founded;

(b)

Whether on the facts so disclosed the defendant appears to have, as to the whole or part of claim, a defence which is both bona fide and good in law. If satisfied on these matters the court must refuse summary judgment, either wholly or in part, as the case may be. The word “fully”,as used in the context of the Rule (and its predecessors), has been the cause of some judicial controversyin thepast. It connotes, in my view, that, while the defendant need not deal exhaustively with the facts and the evidence relied upon to substantiate them, he must at least disclose his defence and the material facts upon which it is based with sufficient particularity and completeness to enable the Court to decide whether the affidavit discloses a bona fide defence ( see, generally, herbDyers (Pty) Ltd v Another1965 (2) SA 914(N) , Arend and another v Astra Furnishers (Pty) Ltd[1974 (1) SA 298(C) at 303 – 4 ; Shepstone v Shepstone1974 (2) SA 462(N). At the same time the defendant is not expected to formulate his opposition to the claim with the precision that would be required of a plea, nor does the Court examine it by the standards of pleading (Estate Potgieter v Elliot1948(1) SA 1084(C) at 1089, Herb Dyers case supra at 32.

Whether on the facts so disclosed the defendant appears to have, as to the whole or part of claim, a defence which is both bona fide and good in law. If satisfied on these matters the court must refuse summary judgment, either wholly or in part, as the case may be. The word “fully

”,

as used in the context of the Rule (and its predecessors), has been the cause of some judicial controversy

in the

past. It connotes, in my view, that

, while the defendant need not deal exhaustively with the facts and the evidence r

elied upon to substantiate them

, he must at least disclose his defence and the material facts upon which it is based with sufficient particularity and completeness to enable the Court to decide whether the affidavit discloses a bona fide defence ( see, generally, herb

Dyers (Pty) Ltd v Another1965 (2) SA 914

1965 (2) SA 914

(N) , Arend and another v Astra Furnishers (Pty) Ltd[1974 (1) SA 298(C) at 303 – 4 ; Shepstone v Shepstone1974 (2) SA 462(N)

[1974 (1) SA 298

. At the same time the defendant is not expected to formulate his opposition to the claim with the precision that would be required of a plea, nor does the Court examine it by the standards of pleading (

Estate Potgieter v Elliot1948

1948

(1) SA 1084(C) at 1089, Herb Dyers case supra at 32

9.Mr. C. J. C. Nel on behalf of the plaintiff contended that that the defendantbreached the terms of the partnership agreement by failing to pay theplaintiff on demand the amount of R1 054 000,00 which the plaintiff wasordered to pay to GearHouseas the result of the cheques the defendanthad issued and which qheques were subsequently dishonoured. He saysthat the plaintiff exposed himself via Cachet for a debt, at the instance ofthe defendant for which the defendant was contractually expressly liableinter se the parties. He says that it was the defendant’s reciprocalobligation to refund the plaintiff and that the extent of the liability of thedefendant to the plaintiff is to pay that sum which the defendant ought tohave paid himself in the first instance and that therefore the defendantremains a debtor to the plaintiff.10.Mr Nel further contends that the defendant has raised two defences:10.1.Atechnical defence; and10.2.Onthemerits,the defendant avers that the partnership agreementwas never implemented and that two oral agreements thereafterwere concluded.11.The defendant in his affidavit denies that he is indented to the plaintiff inthe amount claimed or at all, as he has a bona fide defence to the claim ofthe plaintiff He further denies that he has caused an appearance to defendthe action to be filed solely to delay. He says that he has been advisedthat the plaintiff’s particulars of claim does not disclose a cause of actionalternatively lacks sufficient averments to disclose a cause of action inthat:(a)

9.

Mr. C. J. C. Nel on behalf of the plaintiff contended that that the defendant

breached the terms of the partnership agreement by failing to pay the

plaintiff on demand the amount of R1 054 000,00 which the plaintiff was

ordered to pay to GearHouse

as the result of the cheques the defendant

had issued and which qheques were subsequently dishonoured. He says

that the p

ntiff exposed himself via Cachet for a debt, at the instance of

the defendant for which the defendant was contractually expressly liable

inter se the parties. He says that it was the defendant’s reciprocal

obligation to refund the plaintiff and that the extent of the liability of the

defendant to the plaintiff is to pay that sum which the defendant ought to

have paid himself in the first instance and that therefore the defendant

remains a debtor to the plaintiff.

10

Mr Nel further contends that the defendant has raised two defences:

10.1

A

technical defence; and

10.2.

the

merits,

the defendant avers that the partnership agreement

was never implemented and that two oral agreements thereafter

were concluded

11.

The defendant in his affidavit denies that he is indented to the plaintiff in

the amount claimed or at all, as he has a bona fide defence to the claim of

the plaintiff He further denies that he has caused an appearance to defend

the action to be filed solely to delay. He says that he has been advised

la

intiff’s particulars of claim does not disclose a cause of action

alternatively lacks sufficient averments to di

close a cause of action in

that:

it is not alleged that the partnership, which the plaintiff alleges existed pursuant to annexure B to the plaintiff’s particulars of claim, was wound-up (all that is alleged is that he alleged partnership was terminated)

partners as a matter of law, are not, as regards partnership dealings, considered debtor and creditor inter se until such time as he partnership is wound-up;

(c)

ThePlaintiff, as surety for the company, discharged the debt of such company. It was the company which had a claim, on the plaintiff’s version, against the partnership. The plaintiff, as surety of such company which contracted with the partnership, has no claim against the partnership but only a right of recourse against thecompany as the principal debtor. Only the company could have a claim againstthe partnership. In the absence of a cession of such claim (which is no longer possible as the company has been liquidated) the plaintiff has no cause of action against the partnership or himself, the defendant as a partner.

Plaintiff, as surety for the company, discharged the debt of such company. It was the company which had a claim, on the plaintiff’s version, against the partnership. The plaintiff, as surety of such company which contracted with the partnership, has no claim against the partnership but only a right of recourse against the

company as the principal debtor. Only the company could have a claim against

the partnership

. In the absence of a cession of such claim (which is no longer possible as the company has been liquidated) the plaintiff has no cause of action against the partnership or himself, the defendant as a partner.

12.Mr. Nel has submitted that the plaintiff as apartner does have the right toclaim from the defendant through thepro socio actioand that it isnotnecessary for the partnership to be wound up nor foran account of thepartnership to be preparedespecially sine the amount is readilydeterminable. In this regard he hascited fromthematter ofRobson vTheron1978 (1)843 at849Gthefollowing passage:

12

Mr. Nel has submitted that the plaintiff as a

partner does have the right to

cla

m from the defendant through the

pro socio actio

and that it is

not

necessary for the partn

ership to be wound up nor for

an account of the

partne

rship to be prepared

especially sine the amount is readily

determinable

. In this regard he has

cited from

matter of

Robson v

Ther

on

1978 (1)

843 at

849G

following passage:

“Theactio pro sociowas a personal action which arose from thepartnership agreement. In the first place it could be used while thepartnershipstill existed by apartneragainst aco-partner to enforcefulfillmentof personal obligations (praestationes personales) arising out ofthe partnership agreement and business without the object of dissolvingthe partnership.Secondly theactio pro sociocould alsobe brought by a partner againsthis co-partner for the settlement or adjustment of account s inter seincluding the fulfilment of personal obligations (praestationes personales)arising out of the partnership agreement and business with the object ofdissolving the partnership.”He further contends that it is notnecessary underthe circumstances ofthis case to have the partnership wound up in order for the plaintiff to havethe relief he seeks. In this regard he relies on the case ofLoots vNiewenhuizen and Another1997 (1) SA 361(T) He has furthersubmitted that one partner may sue the other partner for reimbursement ofmoney spenton behalf of the partnership. In this regard he refers to thematter ofPataka v Keef and Another1947 (2) SA 962(AD)aswell asJECelliersv C F Ziervoegel 1893 H 225.Ohasthe partnership.

“The

actio pro socio

was a personal action which arose from the

partnership agreement. In the first p

ce it could be used while the

partnership

till existed by a

partner

against a

co-partner to enforce

fulfillment

of personal obligations (

praestationes personales

) arising out of

the partnership agreement and business without the object of dis

olvin

g

the partnership.

Secondly the

could a

lso

be bro

ught by a partner against

his co

-partner for the settlement or adjustment of account s inter se

including the fulfilment of personal obligations (

praestati

es personales

arising out of the partnership agreement and business with the object of

dis

olving the partnership.

”

He further contends that it is not

necessary under

the circumstances of

this case to have the partnership wound up in order for the plaintiff to have

the relief he seeks. In this regard he relies on the case of

Loots v

Niewenhuizen and Another

1997 (

1) SA 361(T

1) SA 361

) He has further

submitted that one partner may sue the other partner for reimbursement of

money spent

on behalf of the partnership. In this regard he refers to the

Pataka v Keef and Another1947 (2) SA 962(AD

1947 (2) SA 962

as

well as

E

Celliers

v C F Ziervoegel 1893 H 225.

O

has

13.Mr Nel further submitsthat thedefendant does not have a bona fidedence. In this regard he says that the defendant has stated in paragraph5.3 of his affidavitthat theagreement was never implemented. However,against this alleged non implementation the defendant is still prepared toadvance money to the plaintiffwhilst denying existence of an agreement.14.On the other hand Mr. South has submitted that the Court must firstdecide whether there was any agreement between the parties andwhether it was implemented. He says there was no such agreementbecause there is no where averred that there was a banking accountopened for the alleged partnership. He says that there was a second oralagreement that the parties entered into which was a joint ventureagreement for the sharing of profit. He further submits that it is commoncause that the agreement was terminated .He further contends thatCachet had a claim against the partnership and that the plaintiff had stoodsuretyin his personal capacity for Cachet. He further contends that theprosocio actiohad to be employed during the existence of the partnershipand it was common cause that the partnership had already beenterminated , on the version of the plaintiff.15.In the Robson v Theron matter, supra, at page855H-856G Joubert J.A.says that:

13.

Mr Nel further submits

that the

defendant does not have a bona fide

dence. In this regard he says that the defendant has stated in paragraph

5.3 of his affidavit

agreement was never implemented. However,

against this alleged non implementation the defendant is still prepared to

advance money to the plaintiff

whilst denying existence of an agreement.

14.

On the other hand Mr. South has submitted that the Court must first

decide whether there was any agreement between the parties and

whether it was implemented. He says there was no such agreement

because there is no where averred that there was a banking account

opened for the alleged partnership. He says that there was a second oral

agreement that the parties entered into which was a joint venture

agreement for the sharing of profit. He further submits that it is common

cause that the agreement was terminated .

He further contends that

Cachet had a claim against the partnership and that the plaintiff had stood

surety

in his personal capacity for Ca

chet. He further contends that the

pro

socio actio

had to be employed during the existence of the partnership

and it was common cause that the partnership had already been

terminated , on the version of the plaintiff.15.

In the Robson v Theron matter, supra, at page

855H-856G Joubert J.A.

says that:

“(A)theprinciples of common law underlying theactio pro sociomay be conveniently summarised as follows:1.

“(A)

principles of common law underlying the

may be conveniently summarised as follows:

This action may be instituted by a partner against a co-partner during the existence of the partnership for specific performance in terms of the partnership agreement and/ or fulfilment of personal obligation (praestationes personales) arising out of partnership agreementbusiness;

This action may be instituted by a partner against a co-partner during the existence of the partnership for specific performance in terms of the partnership agreement and/ or fulfilment of personal obligatio

n (

praestationes pe

rsonales

) arising out of partnersh

p a

greement

business

.2.

Where the partnership agreement provides for (or the parties subsequently agree upon) the dissolution of the partnership and the manner in which the partnership is to be liquidated and wound – up specific performance thereof may be claimed by means of this action.

Where neither the partnership agreement nor a subsequent agreement between the partners provides for the dissolution of the partnership and the manner in which the partnership is to be liquidated and wound – up this action may in general (subject to any stipulation for the duration of the partnership or any other relevant stipulations) be brought by a partner to have the partnership liquidated and wound – up. The Court in the exercise of its wide equitable discretion may appoint a liquidator to realize the partnership assets for the purpose of liquidating partnership debts and to distribute the balance of the partnership assets or their proceeds among the partners. Potheir, op, cit sec, cit sec 162.

Where a partnership has been dissolved a partner may avail himself of this action against his co-partners to claim distribution of any undistributed partnership asset or assets :

“Each of the former partners can alone demand a distribution of the effects which remain in common after the dissolution of the partnership”.

This obviously covers the situation where, after dissolution of a partnership, a continuing partner retains possession of partnership assets which has not been included in a distribution of the partnership assets. Hence a retiring partner may institute this action against the continuing partner to claim a distribution of the partnership asset in question.

5.A Courthas a wide equitable discretion in respect of the mode of distribution of partnership assets, having regard, inter alia, to the particular circumstances, what is most to the advantage of the partners and what they prefer.

A Court

has a wide equitable discretion in respect of the mode of distribution of partnership assets, having regard, inter alia, to the particular circumstances, what is most to the advantage of the partners and what they prefer.

The various modes of distribution of partnership assets are fully dealtwith by Pothier , op cit., secs 161 -178.”

The various modes of distribution of partnership assets are fully dealt

with by Pothier , op cit., secs 161 -178.

16.In the case ofShingadia v Shingadia1957 (3) SA 195, where thepartnership that consisted of four brothers, had let its immovable propertyto one of the partners at an amount of R100,00 per month and the saidpartner having been in arrears in the amount of R800,00 was sued by thethree remaining partners in the name of the partnership, the Court heldthat the defendant partner was also oneofthe plaintiffs and that thereforethe three plaintiffs cannot in the name of the partnership maintain theaction. The Court at 197 H quoted whatWarringtonsaid, namely:

16.

In the case of

Shingadia v Shingadia1957 (3) SA 195

1957 (3) SA 195

, where the

partnership that consisted of four brothers, had let its immovable property

to one of the partners at an amount of R100,00 per month and the said

partner having been in arrears in the amount of R800,00 was sued by the

three remaining partners in the name of the partnership, the Court held

that the defendant partner was also one

of

the plaintiff

s and that therefore

the three plaintiffs cannot in the name of the partnership maintain the

action

. The Court at 197 H quoted what

Warrington

said, namely:

“ A partner cannot be a creditor of or a debtor to his firm or sue his firm orbe sued by it, in as much as the English law does not recognise theexistence of a firm as distinct from the members of it; and further in anaction by one or more partners, whether using the name of the firm underOrder 48 A or not, against a co-partner alleging thatthat money is duefrom the defendant to the plaintiffs in connection with the affairs of thefirm, whether the claim arises in respect of transactions during thecontinuance of the partnership, or in the course of he winding-up of itsaffairs after dissolution, the only relief which the plaintiff could obtainwould be an account of the dealings and transactions of the partners” TheCourtsaid that these observations are identical with the principles of ourlaw.

“ A partner cannot be a creditor of or a debtor to his firm or sue his firm or

be sued by it, in as much as the English law does not recognise the

existence of a firm as distinct from the members of it; and further in an

action by one or more partners, whether using the name of the firm under

Order 48 A or not, against a co-partner alleging that

that money is due

from the defendant to the plaintiffs in connection with the affairs of the

firm, whether the claim arises in respect of transactions during the

continuance of the partnership, or in the course of he winding-up of its

affairs after dissolution, the only relief which the plaintiff could obtain

would be an account of the dealings and transactions of the partners” The

Court

aid that these observations are identical with the principles of our

law.

17.In the present case ,on the version of the plaintiff, the partnership hasbeen terminated.This then means that his case does not fall within thefirst point mentioned by Joubert, J.A in the Robson v Theron casesince itis not brought during the existence of the partnership, (see paragraph 15supra under (A)1).18.The agreement attached by the plaintiff as annexure B provides for thewinding up and termination of the partnershipthrough clause 14.Thisclause provides, inter alia, that the assets of the partnership business shallbe used and distributed in the following order:‘(a)To pay and provide for the payment of all partnership liabilities andliquidating expenses and obligations;(b)...(c)to make the income accounts of the partners proportionate to theirrespective shares in partnership profits;(d)To discharge the balance of the income accounts of the partners;(e)To distribute to the partners in proportion to their interest in the capital ofthe partnership;”

17.

In the present case ,on the version of the plaintiff, the partnership has

been terminated.

This then means that his case does not fall within the

first point mentioned by Joubert, J.A in the Robson v Theron case

since it

is not brought during the existence of the partnership, (see paragraph 15

supra under (A)1)

18.

The agreement attached by the plaintiff as annexure B provides for the

winding up and termination of the par

nership

through clause 14.This

clause provides, inter alia, that the assets of the partnership business shall

be used and distributed in the following order:

‘(a)

To pay and provide for the payment of all partnership liabilities and

liquidating expenses and obligations;

(b).

..

to make the income accounts of the partners proportionate to their

respective shares in partnership profits;

(d)

To discharge the balance of the income accounts of the partners;

(e)

To distribute to the partners in proportion to their interest in the capital of

the partnership;”

The second point articulated by Joubert is through this pro socio to claimfor specific performance of what is tabulated in the winding up andtermination clause 14 of the agreement. The plaintiff’s claimdoes not fallwithin this point since he is not claiming for specific performance of what iscontained in the winding up clause 14.Neither does the plaintiff’s claim fallunder point 3since there is provision for winding up in the agreement.Under point point 4, according to Joubert AJ, thisaction isavailable to apartner where the partnership has been dissolved, to claim distribution ofany undistributed partnership assets. In this regard it apposite to refer tothe matter ofOlivier v Stoop1978 (1) SA 119at 203Gwherethe Courtsaid that although the partnership is dissolved, but concerning accountingbetween them and the world at large, the partnership still remains in forceuntil it has been finally liquidated. Before the partnership is liquidated theremust first be accounting by each partner to the partnership. If the partiescannot agree,then theremust be a liquidator appointed who, once theassets of the partnership have been made liquid, will first pay the debts ofthe partnershipand if there is anything remaining then divide thisproportionately to their respective shares.In the Robson v Theron matter(supra) at 853D it is stated that for purposes of distribution of thepartnership assets an account must first be framed of what each partnerowes the partnership and of what is due to each partner by thepartnership. The amount of the sum for which a partner is a debtor to thepartnership should be set off against those for which he is a creditor.

The second point articulated by Joubert is through this pro socio to claim

for specific performance of what is tabulated in the winding up and

termination clause 14 of the agreement. The plaintiff’s claim

does not fall

within this point since he is not claiming for specific performance of what is

contained in the winding up clause 14.Neither does the plaintiff’s claim fall

under point 3

since there is provision for winding up in the agreement.

Under point point 4, according to Joubert AJ, this

action is

available to a

partner where the partnership has been dissolved, to claim distribution of

any u

ndistributed partnership assets. In this regard it apposite to refer to

the matter of

Olivier v Stoop1978 (1) SA 119at 203

1978 (1) SA 119

G

where

the Court

said that although the partnership is dissolved, but concerning accounting

between them and the world at large, the partnership still remains in force

until it has been finally liquidated. Before the partnership is liquidated there

must first be accounting by each partner to the partnership. If the parties

cannot agree

then there

must be a liquidator appointed who, once the

ass

et

s of the partnership have been made liquid, will first pay the debts of

and if there is anything remaining then divide this

proportionately to their respective shares.

In the Robson v Theron matter

(supra) at 853D it is stated that for purposes of distribution of the

partnership assets an account must first be framed of what each partner

owes the partnership and of what is due to each partner by the

partnership. The amount of the sum for which a partner is a debtor to the

partnership should be set off against t

hose for which he is a creditor

20.Mr.South has pointedout,quit correctlyso,that in thePataka v Keefeand Another matter (supra) the Appellate Division left undecidedthequestionwhether a partner can during the existence of the partnershipsue his partner for reimbursement of money spent by the other partner forthe affairs or business of the partnership. He contends that after thedissolution of the partnership there must first be accounting. In De Wetand YeatsKontraktereg en Handelsreg4thedition at page 414 -415 it isstated inter alia that at the termination of a partnership the partners mustall together institute action in regard to the collection of the debts ofthepartnership, unless there has been a cession of the rights of thepartnership to the other partner.At page 399 the learned authors say thatsometimestheactio pro sociocan be used by one partner to claimsomething elseeither than moneyfrom the other partnersarising from thepartnership agreement. However, if it is payment of money that is claimedfrom the other partners, then there must first be accounting.21.In the matter ofTurkstra v Goldberg and Another1960 (1) SA512(T)at513H-514the Court said that in the event the plaintiff had intended tosue two individuals as the members of a partnership which had beendissolved, it would be essential to allege that the partnership has beendissolved.“In the absence of such anallegation .the summons is also badon that basis.

20

Mr.South has pointed

out,

quit correctly

so,

that in the

Pataka v Keefe

and Another matter (supra) the Appellate Div

is

ion le

ft undeci

d

ed

question

whether a partner can during the existence of the partnership

sue his partner for reimbursement of money spent by the other partner for

the affairs or business of the partnership. He contends that after the

dissolution of the partnership there must first be accounting. In De Wet

and Yeats

Kontraktereg en Handelsreg

th

edition at page 414 -415 it is

stated inter alia that at the termination of a partnership the partners must

all together institute action in regard to the collection of the debts of

he

partnership, unless there has been a cession of the rights of the

partnership to the other partner.

At page 399 the learned authors say that

sometimes

can be used by one partner to claim

something else

either than money

from the other partners

arising from the

partnership agreement. However, if it is payment of money that is claimed

from the other partners, then there must first be accounting.

21.

Turkstra v Goldberg and Another1960 (1) SA

1960 (1) SA

512(T)

at

513H-514

the Court said that in the event the plaintiff had intended to

ue two individuals as the members of a partnership which had been

dissolved, it would be essential to allege that the partnership has been

dissolved.

In the absence of such an

allegation .

the summons is also bad

on that basis.

…any amendment can be allowed by which an allegation of dissolution isinserted. A claim against one partner on a partnership obligation containedin a written document on the ground that the partnership has beendissolved is not, …a liquid claim capable of supporting a claim forprovisional sentence. Dissolution of partnership is not a “simple condition”upon which a claim arises within the meaning of that term inUnion ShareAgency and Investment Ltd v Spain,1928 A.D. 74at 78 to 79.Further,this is not a case of payment of an obligation specified in a writtendocument being subject tothe fulfilment of a simple condition. Theobligation itself to pay the whole debt as an ex-partner in a dissolvedpartnership was subject to a condition that the partnership had been fullydissolved; for the importance of this distinction seeInglestone vPereira1939 W.L.D. 55at 62.22.

…any amendment can be allowed by which an allegation of dissolution is

inserted. A claim against one partner on a partnership obligation contained

in a written document on the ground that the partnership has been

dissolved is not, …a liquid claim capable of supporting a claim for

provisional sentence. Dissolution of partnership is not a “simple condition”

upon which a claim arises within the meaning of that term in

Union Share

Agency and Investment Ltd v Spain,1928 A.D. 74at 78 to 79.

1928 A.D. 74

Further,

this is not a case of payment of an obligation specified in a wr

itten

document being subject to

the fulfilment of a simple condition

. The

obligation itself to pay the whole debt as an ex-partner in a dissolved

partnership was subject to a condition that the partnership had been fully

dissolved; for the importance of this distinction see

Inglestone v

Pereira

1939 W.L.D. 55at 62.

1939 W.L.D. 55

22.

In the light of the above authority, I am of the view that there is merit in thecontention that the plaintiff must not only allege in his particulars of claimthat the partnership has terminated, he must also allege that thepartnership has since been winded up. This essential averment has notbeen done in the instant case.I am of the view that it is inappropriate togrant summary judgment under such circumstances as in casu.

In the light of the above authority, I am of the view that there is merit in the

contention that the plaintiff must not only allege in his particulars of claim

that the partnership has terminated, he must also allege that the

partn

ership has since been winded up. This essential averment has no

been done in the instant case.

I am of the view that it is inappropriate to

grant summary judgment under such circumstances as in casu.

23.

In the light of the above authorities, I am therefore of the view that itcannot be said that the defence raised by the defendant is not bona fideraised nor are there no triable issues. I am of the view that it is notnecessary for me to deal with the rest of the issues that have been raisedin this matter. If there is a singular defence that that is capable of beingadjudicated upon on trial, and which has the potential of striking at thefundamental of the plaintiff’s case, thee summary judgment cannot begranted.24.

In the light of the above authorities, I am therefore of the view that it

cannot be said that the defence raised by the defendant is not bona fide

raised nor are there no triable issues. I am of the view that it is not

necessary for me to deal with the rest of the issues that have been raised

in this matter. If there is a singular defence that that is capable of being

adjudicated upon on trial, and which has the potential of striking at the

fundamental of the plaintiff’s case, thee summary judgment cannot be

granted.

24.

Mr South has submitted that the plaintiff has been unreasonable ininsisting to continue with thisapplication in the light of the defencesraised in the defendant’s affidavit and that the Court should show itsdispleasure and mulct the plaintiff with the cost of day of the arguing theapplication and that the rest of the cost in the cause. Mr. Nel has on thecontrary submitted that it is customary that in such matters the Courts willorder that the costs be the cost in the cause and that there is no specialreason to mulct the plaintiff. I see no reason that the plaintiff should bepunished in not having merely agreed to having leave to defend grantedto the defendant. I am of the view that the issues that have been raised inthis matter are not the common issuesthat are encountered every daywhere one can say that the plaintiff should have known better. However,

Mr South has submitted that the plaintiff has been unreasonable in

insisting to continue with this

application in the light of the defences

raised in the defendant’s affidavit and that the Court should show its

displeasure and mulct the plaintiff with the cost of day of the arguing the

application and that the rest of the cost in the cause. Mr. Nel has on the

contrary submitted that it is customary that in such matters the Courts will

order that the costs be the cost in the cause and that there is no special

reason to mulct the plaintiff. I see no reason that the plaintiff should be

punished in not having merely agreed to having leave to defend granted

to the defendant. I am of the view that the issues that have been raised in

this matter are not the common issues

that are encountered every day

where one can say that the plaintiff should have known better. However,

25.

In the premises the following order is made:

Summary judgment is refused;

Leaveto defend the action is granted to the defendant.

Leave

to defend the action is granted to the defendant.

The cost shall be cost in the cause.

N.M. MAVUNDLA

JUDGE OF THE HIGH COURT

HEARD ON THE:20/06/2006DATE OF JUDGMENT: 19/07/06

HEARD ON THE:

20/06/2006

DATE OF JUDGMENT: 19/07/06

APPLICANT`S ADV:CJC NEL instructed by: -

APPLICANT`

S ADV

CJC NEL instructed by: -

APPICANT`S ATT:ITZIKOWITZ & ASSOCIATED c/o JACOBSON & LEVY INC,PRETORIA

APPICANT`S ATT:

ITZIKOWITZ & ASSOCIATED c/o JACOBSON & LEVY INC,

PRETORIA

DEFENDANT`S ADV: instructed by: -

DEFENDANT`

: instructed by: -

DEFENDANT`S ATT:ROUTLEDGE MODISE MOSS,PRETORIA

DEFENDANT`S ATT:

ROUTLEDGE MODISE MOSS,