COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
the matter between:
v Preuss (I
799/2010)  NAHCMD 355 (26 November 2013)
08 November 2013
26 November 2013
application is dismissed with costs which will include the costs of
one instructing and two instructed counsel.
This is an application brought by the plaintiff to firstly amend his
particulars of claim, and secondly to join two close corporations,
HAW Retailers CC and Claudia Properties CC as the second and third
defendants to the action. A further entity Ark Trading (Pty)
Ltd was also to be joined. The plaintiff no longer seeks to join that
entity which had ceased to exist.
In its present form, the particulars of claim read as follows:
plaintiff is ARTHUR ROLF PREUSS, an adult businessman C/O HAW
RETAILERS CC T/A ARK TRADING, WINDHOEK.
defendant is ERIKA PREUSS (born FEIL), an adult female businesswoman
C/O HAW RETAILERS CC T/A ARK TRADING, WINDHOEK.
parties were married to each other out of community of property by
antenuptial contract at Windhoek on 20 March 1969 which marriage
about 1980 the plaintiff started a Builders Hardware business under
the name ARK TRADING in partnership with KARL MICHEL and COBUS VAN
WYNGAARDEN. The plaintiff bought the other partners out and since
1983 he was the sole owner of the business.
plaintiff appointed the defendant as financial director of the
business and the business was thereafter conducted for the joint
benefit of the parties and a tacit partnership agreement was entered
into between the parties.
plaintiff started the business with an initial share of one third of
the total shares and in 1983 paid an amount of N$250 000.00 for the
shares of the other two partners. The defendant initially contributed
a house as collateral for the one third share of the plaintiff in the
business and after she joined the business the parties contributed in
equal shares their labour, services and skill to the business.
Neither party received a salary from the said business, but from time
to time, each one, by agreement drew money from the profits of the
business for his or her benefit and for purposes of the common
was also drawn from the profits of the business from time to time to
expand the business to inter alia all branches of the
construction industry and property market.
express agreement as to the division of the profits of the business
as extended was arrived at between the parties, but the plaintiff
avers that in the premises it was tacitly agreed that the profits
would be divided in equal shares.
defendant denies that a partnership agreement exists with regard to
the closed corporation HAW RETAILERS CC T/A ARK TRADING and allege
she is the sole owner thereof.
material times the books and accounts of the partnership is in the
possession and control of the defendant, but she denies the plaintiff
THE PLAINTIFF CLAIMS:
An order declaring that a
partnership exists between the plaintiff and defendant in equal
shares in respect of all the assets of HAW RETAILERS CC T/A ARK
TRADING and all other business enterprises owned by the partners.
An order that the defendant
must make the books and accounts of the partnership available to the
plaintiff at all relevant times.
That all costs of this
application be borne by the partnership estate.’
It is apparent from the papers that by seeking to amend the
particulars of claim, the plaintiff seeks to cast his net
At the risk of burdening this judgment I set out the proposed
amendments as they appear in the Notice of Amendment:
the words “6 RIDVAN AVENUE” between the words “trading”
Insert the word “First” before “Defendant” in
the first line.
Insert the words “6 RIDVAN AVENUE” between the words
“trading” and “Windhoek”.
new paragraph 3 to read as follows:
second defendant is ARK TRADING (PTY) LIMITED, a company with limited
liability registered in terms of the Company Laws of the Republic of
Namibia with main place of business at 6 RIDVAN AVENUE. The second
defendant is cited in view of its interest in this matter and no
order as to costs is requested against it”.
new paragraph 4 to read as follows:
third defendant is HAW RETAILERS CC t/a ARK TRADING, a close
corporation registered as such in terms of the applicable Close
Corporation Laws of the Republic of Namibia with its principal place
of business at 6 RIDVAN AVENUE, PIONIERSPARK, WINDHOEK. This
defendant is cited for its interest in the matter and no order for
costs is requested against it”.
new paragraph 5 to read as follows:
Fourth defendant is CLAUDIA PROPERTIES CC, a Close Corporation
registered as such in terms of the applicable Close Corporation Laws
of the Republic of Namibia with its registered address at INDIGO
CONSULTING (PTY) LTD, 20 VON FALKENHAUSEN STREET, PIONIERSPARK,
WINDHOEK. This defendant is cited for its interest in the matter and
no order for costs is requested against it.
Renumber as paragraph “6”.
Delete the word “parties” in the first line and replace
with the following words: “The plaintiff and the first
PARAGRAPHS 4, 5, 6 AND 7:
Delete paragraphs 4, 5, 6 and 7.
Insert the following new paragraphs 7 8, 9, 10, 11, 12, 13, 14 and 15
to read as follows:
From April 1969 and thereafter during the subsistence of the
marriage, the plaintiff and the first defendant commenced for their
joint benefit a number of businesses, inter alia the second, third
and fourth defendants, acquired properties and were engaged in
various undertakings, and in so doing entered into a tacit universal
partnership quae ex quaestu.
plaintiff contributed to the various businesses, properties and
undertakings substantial sums of money and both the plaintiff and
first defendant contributed in equal shares their labour, services
Profits from the various businesses and undertakings were utilized to
expand the various businesses and undertakings forming part of the
universal partnership, inter alia, to establish further branches in
relation to the construction industry and also in relation to the
the plaintiff nor the first defendant received a salary from the said
businesses, but, from time to time, each one by mutual agreement,
drew funds from the profits of the business for his or her benefit
and for the purpose of the common household.
all relevant times during the currency of the universal partnership
the first defendant acted as the sole manager of the partnership’s
business, conducted all of the partnership’s administration and
finances and was in sole control thereof.
plaintiff had not share in the management and control of the
partnership’s business, undertakings, its transactions or
Since or about 1994 the first defendant excluded the plaintiff from
the financial affairs of the universal partnership.
plaintiff is unable to accurately determine the manner in which the
first defendant has dealt with the assets and funds of the universal
partnership since 1994.
Despite the obligation to do so, the first defendant has to date
failed to render to the plaintiff an account of the partnership’s
transactions, finances and assets.”
Delete paragraph 8.
Insert the following new paragraph 16 to read as follows:
There was no express agreement between the plaintiff and first
defendant as to the division of the profits of the various
businesses, but the plaintiff pleads that in the premises it was
tacitly agreed that the profits of the various businesses would be
divided in equal shares.”
Delete paragraph 9.
Insert the following paragraphs 17, 18 and 19 to read as follows:
During or about 1996 the first defendant sought to cancel the
universal partnership unilaterally but the plaintiff never agreed
thereto, and accordingly the universal partnership was not dissolved
and still subsists.
conflict with the universal partnership agreement between the
plaintiff and the first defendant, the first defendant engaged in
certain conduct, inter alia:
Without the consent of the plaintiff the first defendant utilized
funds of the partnership to acquire for herself membership interest
in various close corporations and/or shares in other corporate
entities, the particulars of which are unknown to the plaintiff;
accordingly misappropriated in the plaintiff’s 50% (fifty per
centum) share in the universal partnership assets;
also registered various properties which she has acquired with the
funds of the universal partnership in her own name or in the name of
the corporate entities referred to in paragraph 18.1 above and with
the intent to misappropriate the plaintiff’s 50% (fifty per
centum) share in the universal partnership assets;
Without the consent of the plaintiff and without lawful cause during
996 the first defendant instructed the then accountant for the second
defendant to draw financial statements for the second defendant
wherein the first defendant was reflected as the sole owner of the
second defendant and its assets, whilst all the liabilities were
transferred into the name of the plaintiff; and
During 1996 and thereafter the first defendant fraudulently claimed
that she was the sole owner of the second defendant, whilst
attempting to misappropriate the plaintiff’s 50% (fifty per
centum) share in such assets.
The partnership also acquired an immovable property which is intended
to be used as business premises for the partnership. The said
property was registered in the name of the fourth respondent and is
currently being used as the business premises of the third respondent
and thus the partnership.
plaintiff pleads that at all relevant times, the universal
partnership between the plaintiff and the first defendant was never
dissolved and still subsists.”
Delete paragraph 10.
Insert the following new paragraphs 20 and 21 to read as follows:
At all material times, the first defendant was and still is in
possession of all the books of account of the universal partnership;
first defendant denies the existence of the universal partnership and
has refused to render to the plaintiff an account of the businesses
PRAYERS 1 TO 4:
Delete prayers 1, 2, 3 and 4.
Insert new prayers 1, 2, 3, 4 and 5 to read as follows:
An order directing that a universal partnership exists between the
plaintiff and the first defendant and the plaintiff and the first
defendant each have a 50% (fifty per centum) share in such
order directing that the said partnership be dissolved with effect
from the date of the decree of divorce granted in respect of the
plaintiff and the first defendant.
Failing an agreement between the parties within a period of 2 (two)
months (or such longer period as the plaintiff and the first
defendant may in writing agree upon) on a net benefit accruing to the
plaintiff from the partnership and the manner and date of delivery or
payment or such benefit to the plaintiff:
is ordered that a liquidator be appointed to liquidate the said
Unless the plaintiff and first defendant within 1 (one) month after
the termination of the period stated in the introductory part of
prayer 3 above, agree in writing on the appointment of a liquidator,
the liquidator shall be appointed at the request of either the
plaintiff of the first defendant by the Chairperson of the Law
Society of Namibia;
plaintiff and first defendant shall within 1 (one) month of the
appointment of a liquidator deliver to the liquidator and to each
other a statement of his/her assets and liabilities as at a date to
be determined by the Court duly supported by such available documents
and records as are necessary to establish the extent of such assets
liquidator may call on either the plaintiff or the first defendant
mero motu or at the request of one of them to deliver further
documents or records to the liquidator and the other party;
liquidator shall determine a date for the debatement of the
statements referred to in paragraph 3.3 and shall preside over such
liquidator shall within 1 (one) month of the conclusion of the
debatement make an award in writing determining the assets and
liabilities of the partnership and dividing 50% (fifty per centum) to
the first defendant;
plaintiff and the first defendant shall give effect to any award made
by the liquidator within such period as he or she may direct in
costs of the liquidator shall be borne by the parties in proportion
to their shares in the partnership estate.
That the first defendant be
ordered to pay the costs of the action;’
The first respondent in this application who is the defendant in the
main application and to whom I will refer to as the defendant opposes
the application. Firstly the defendant contends that she and the
plaintiff/applicant were married out of community of property at the
relevant time. This is common cause.
In law persons married out of community of property cannot alter or
vary the antenuptial contract, it is contended. That is trite.
The defendant contends that the proposed amendments seek to introduce
allegations that the antenuptial contract was varied, which in law is
Secondly the defendant alleges that the proposed amendments, and more
particularly the new intended paragraphs 7 and 18 are vague and
Mr. Vermeulen represents the plaintiff and Mr. Heathcote SC, who was
assisted by Ms. van der Westhuizen, appear for the defendant.
I will now deal with the first objection.
There is ample authority in our case law for the proposition that
parties who are married to one another out of community of property
can enter into partnership agreements to conduct business enterprises
for profit. In Möhlmann v Möhlmann 1984 (3) SA 102
(A), for instance it was stated at p. 123 G:
a business is started and built up through the joint endeavours of a
man and his wife, married out of community of property, the elements
of a partnership may be present although there is no express
agreement to that effect.”
Mr. Heathcote did not refer me to any authority to the contrary. He
was content to submit only that the point raised now, that such a
partnership, will alter the antenuptial contract had not been raised
and debated on before.
I do not think that there is any merit in the submission. The mere
fact that parties who are married out of community of property, set
up a business venture in partnership, does not in my view, alter the
terms of the antenuptial contract. Each retains his own estate. The
profits from the business venture once distributed in accordance with
the terms of the partnership agreement accrue to the individual
estate of each of the parties. They are for the purposes of the
partnership in the same position as unrelated parties to a
By entering into such an agreement of partnership neither of the
spouses relinquishes the control of the separate estate of each one
What is prohibited is a partnership universorom bonorum, that is one
by which the parties agree to put in common all their property.
I did not understand Mr. Vermeulen to contend otherwise. He did
stress in argument that the plaintiff does not seek to allege a
partnership universarom bonorum.
Mr. Vermeulen drew my attention to the concluding phrase of the
proposed paragraph 7 which reads… and in so doing entered into
a tacit universal partnership quae ex quaestu. That is the type of
partnership where the parties engage in business ventures.
Whether on the proposed amended particulars as a whole, such is the
case, is of course another matter.
The difficulty I have though with the proposed amendments is that
they are vague to the point where they become embarrassing in the
sense that it will prejudice the defendant in seeking to answer the
case, the plaintiff seeks to make.
The use of the phrase “inter alia” coupled with other
phrases such as “a number of businesses”, “various
undertakings”, “various close corporations” and
“other corporate entities” are virtually limitless apart
from being vague in the extreme.
How, one may ask, is the defendant to know what it is that the
plaintiff lays claim to.
If there are “close corporations” and “corporate
entities” in the mix, they will have to be joined as interested
parties. Until they can be identified on the pleadings that exercise
cannot be undertaken.
Mr. Vermeulen stated in argument that the plaintiff does not know who
these close corporations, corporate entities and undertakings are in
which he seeks to allege he is a partner. To that he added that, if I
understood him correctly that all will or may be revealed on that
score as the trial unfolds.
I cannot, in the exercise of my discretion allow such a situation to
develop. It will no longer be a trial but proceedings reminiscent of
a commission of enquiry.
I will for these reasons dismiss the application.
As far as the joinder of the other respondents are concerned, that
issue may or may not arise in future. There is no need to consider
The application is dismissed with costs which will include the costs
of one instructing and two instructed counsel.
Instructed by Grobler &
R Heathcote SC (with him C van der Westhuizen)
Instructed by Theunissen,
Louw & Partners, Windhoek