HANS-GUNTHER STIER AND BERNHARD VENTE versus ...

SUMMARY
“REPORTABLE”
CASE NO.: (P) I 2618/2007
HANS-GüNTHER STIER & ANOTHER versus CHRISTIANE
HENKE
NAMANDJE, AJ
25/11/2008
Practice: The proper test for an application for absolution
from the instance at the close of the Plaintiff’s case
is that the Court must at this stage consider
whether or not there is evidence before it upon
which it might and not should find for the plaintiff.
Held: The Court must at this stage be
concerned with its own Judgment and
not that of another reasonable person
or court.
Contracts: A person seeking to establish the existence of a
tacit agreement is required to show unequivocal
conduct which is capable of no other reasonable

interpretation than that the parties intended to and
did in fact agree on the terms alleged. It must
further be clear on the facts that from the parties’
conduct there was in fact consensus ad idem.
Courts are cautioned to be continually on their
guards against being persuaded to introduce terms
in contract not necessarily intended and agreed
upon by the parties and not to readily impose
agreements on the parties in cases of alleged tacit
agreements.
While silence in some cases, depending on the
facts, may amount to acceptance of an offer and
result in an enforceable contract, tacit contracts are
not easily inferred from silence.
2

IN THE HIGH COURT OF NAMIBIA
In the matter between:
3
CASE NO: (P) I 2618/2007
HANS-GÜNTHER STIER 1 ST PLAINTIFF
BERNHARD VENTE 2 ND PLAINTIFF
and
CHRISTIANE HENKE DEFENDANT
CORAM: NAMANDJE, AJ
Heard on: 28, 29 & 30/10/2008; 10 & 11/11/2008
Delivered on: 25.11.2008
JUDGMENT:
NAMANDJE, AJ: [1] In this matter the trial progressed up to the stage
where the plaintiffs’ case was closed and the defendant brought an
application for absolution from the instance.

[2] The first plaintiff is Hans Günther Stier, a chartered accountant,
who was since 2001 until 31 October 2005 practising in a partnership of
chartered accountants, with the second plaintiff and defendant under the
name and style Stier Henke Associates. Stier presently practises in
partnership with the second plaintiff under the name and style Stier
Vente Associates. From 1996 Stier initially only practised with the
defendant until joined by one Schuckmann in 1998 and later by Vente in
2001.
[3] The second plaintiff is Bernard Vente, also a chartered accountant,
who practised in partnership with the first plaintiff and defendant as
aforesaid from January 2001 until 31 October 2005 and currently
practises as a chartered accountant in partnership with the first plaintiff
under the name and style, Stier Vente Associates.
[4] The defendant is Christiane Henke, a chartered accountant. She
was in partnership with the plaintiffs until 31 October 2005. The
defendant gave her notice of resignation from the partnership during
April 2005 and resigned on 31 October 2005.
[5] For the sake of convenience the two plaintiffs, shall be referred to
jointly as the plaintiffs, the first plaintiff shall be referred to as “Stier”
and second plaintiff shall be referred to as “Vente.”
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[6] The plaintiffs brought an action against the defendant in which they
claim an amount of N$1, 074, 688.00 as a result of the alleged breach of
the terms of a tacit agreement (terms of which are recorded in an
unsigned document hereinafter for convenience sake, to be referred to as
the unsigned document and which is referred to in the particulars of
claim as annexure “B” or new agreement) on the ground set out under
the relevant paragraphs of the particulars of claim as set out herein
below.
[7] Some of the relevant parts of the plaintiffs’ particulars of claims (as
amended) read as follows:-
entered
“4. On 20 December 1996 the first plaintiff and the defendant
into a written partnership agreement annexed hereto marked
annexure “A”. (the old partnership agreement) on the basis
whereof they practised in partnership as chartered accounts
and auditors from September 1996 to 31 December 2000 (the
old partnership).
5. It was an explicit term of the old partnership agreement that:-
“19. If a partner shall cease for any reason whatsoever to be
a partner save as is specifically authorized in advance
by the Senior Partner, he shall not, directly or indirectly,
whether as principal or agent, for a period of 2 years
from the date upon which he ceases to be a partner ask
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for, or accept business from clients who are clients of
the firm at the date of his ceasing to be a partner or who
were clients within a period of twelve months prior to
the date upon which he ceases to be partner.
20. Should any partner who leaves the firm contradict 19
above, the remaining partners of the firm shall be
entitled, as an alternative to seeking and interdict
against the retiring partner, to claim from the retiring
partner, who shall be obliged to pay on demand, an
amount equal to the gross fees charged to that client or
those clients for a twelve month period based on the
latest billings of the firm to that client in respect of
services rendered for an entire year.”
6. Subsequent to 15 January 2004, the first and the
second plaintiff and the defendant, (the parties) tacitly
entered into a new partnership agreement with the
terms as set out in annexure “B” hereto (the new
partnership agreement). The new partnership
agreement was not signed, but the parties implemented
Annexure “B” by acting upon it with full knowledge of its
contents.
7.1 Clauses 19 and 20 of the old partnership agreement
were effectively incorporated in clause 8 of Annexure B.”
[8] The plaintiffs claim that the defendant, after her resignation,
accepted business from former clients of the partnership in breach of the
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above clauses 19 and 20, which were initially terms of the old agreement
and subsequently incorporated in the unsigned document which,
according to the plaintiffs, was tacitly entered into as a contract by the
parties. The defendant in her plea admitted, with some qualifications,
that she accepted business from former clients of the partnership within
the period of two years after her resignation but denies that the parties
tacitly entered into an agreement which includes clauses 19 and 20 as
pleaded by the plaintiffs and as reflected in the unsigned document
dated 15 January 2004.
[9] The written partnership agreement between Stier and the defendant
that subsisted from 1996 to 1998 and which is referred to in the
particulars of claim as the old agreement shall be referred to herein as
such. The plaintiffs’ claim is based on the allegations that clauses 19
and 20 as reflected under paragraph 5 of the above quoted part of the
plaintiffs’ particulars of claim, which also appear in paragraph 8 of the
unsigned document dated 15 January 2004, were breached by the
defendant. It is therefore the plaintiffs’ case that the defendant is liable
to compensate them in the amount of N$1,074,688.00 in terms of
paragraph 20 as quoted hereinabove. The crucial question at this stage
is whether or not on the evidence proffered by the plaintiffs at the close
of their case, it might be found for the plaintiffs that the unsigned
document reflects the agreement tacitly entered into by the three parties.
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[10] The defendant, while admitting in her plea that the parties practised
in partnership as chartered accountants and auditors from 1 January
2001 to 31 October 2005 and that she had knowledge of the content of
the unsigned document (being the unsigned copy of the document
embodying the terms alleged by the plaintiffs to have been tacitly agreed
upon by the parties, subsequent to 15 January 2004), she denies that
the parties tacitly entered into the alleged agreement. She, in alternative,
raised a number of defences in the event of this court finding that the
parties tacitly entered into the agreement alleged by the plaintiffs. The
alternative grounds are not relevant for purposes of the present
judgment.
[11] After the close of the plaintiffs’ case counsel for the defendant
applied for absolution from the instance with costs. He sought such an
order solely on the ground that at the close of the plaintiffs’ case no
prima facie case was made out that the parties tacitly entered into the
alleged agreement incorporating the terms on which the plaintiffs’ claim
is based. After hearing arguments from Mr R Strydom, counsel for the
defendant and Mr R Heathcote, counsel for the plaintiffs this court
reserved judgment.
[12] Over the years, courts have expressed and formulated the test to be
applied when absolution from the instance is sought at the close of the
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plaintiff’s case in slightly varying terms but without changing the
essential content, principle and elements of the test. I am of the view,
from reading various authorities, that whatever the expression of the test
has been – the proper test is that any court considering an application
for absolution from the instance at this stage must consider whether or
not there is evidence before it upon which it might and not should, find
for the plaintiff. If there is such evidence absolution from the instance
cannot be granted. It goes without saying that at any stage of the trial,
inclusive of the application for absolution, the court is invariably
required to act and apply its mind carefully and reasonably. I intend
doing that too. The test is as clearly set out in Gordon Lloyd Page and
Associates v Rivera and Another 2001 (1) SA 88 where Harms JA at pages
92 E to I to 93 A to B, stated the following:-
“{2} The test for absolution to be applied by a trial court at the end
of a plaintiff’s case was formulated in Claude Neon Lights (SA)
Ltd v Daniel 1976 (4) SA 403 at 409G – H in these terms:
‘…(W)hen absolution from the instance is sought at the close
of plaintiff’s case, the test to be applied is not whether the
evidence led by plaintiff establishes what would finally be
required to be established, but whether there is evidence upon
which a Court, applying its mind reasonably to such evidence,
could or might (not should, nor ought to) find for the plaintiff.
(Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour
Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T).’
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This implies that a plaintiff has to make out a prima facie case
– in the sense that there is evidence relating to all the
elements of the claim – to survive absolution because without
such evidence no court could find for the plaintiff (Marine &
Trade Insurance Co. Ltd v Van der Schyff 1972 (1) SA 26 (A) at
37G – 38 A; Schmidt Bewysreg 4 th ed at 91 – 2). As far as
inferences from the evidence are concerned, the inference
relied upon by the plaintiff must be a reasonable one, not the
only reasonable one (Schmidt at 93). The test has from time to
time been formulated in different terms, especially it has been
said that the court must consider whether there is ‘evidence
upon which a reasonable man might find for the plaintiff’
(Gascoyne (loc cit))- a test which had its origin in jury trials
when the ‘reasonable man’ was a reasonable member of the
jury (Ruto Flour Mills). Such a formulation tends to cloud the
issue. The court ought not to be concerned with what
someone else might think; it should rather be concerned with
its own judgment and not that of another “reasonable” person
or court. Having said this, absolution at the end of a
plaintiff’s case, in the ordinary course of events, will
nevertheless be granted sparingly but when the occasion
arises, a court should order it in the interests of justice.
Although Wunsh J was conscious of the correct test, I am not
convinced that he always applied it correctly although, as will
appear, his final conclusion was correct.” (Own emphasis)
I agree with Harms JA in toto and in particular, that the court must at
this stage be concerned with its own judgment and not that of another
reasonable person or court. I adopt that approach as the conclusion
would in any event be the same. I also agree that the inference to be
10

drawn from the plaintiffs’ evidence should not necessarily be the only
reasonable inference, but a reasonable one. The test as referred to in
Tutaleni Reinhold Shiimi v Mutual & Federal Insurance Company of
Namibia, unreported Case No. (P) I 2269/07 Judgment delivered on
28.11.2007 at page 5, should therefore be applied mutatis mutandis, in
conjunction with the above.
[13] Any court seized with an application for absolution from the
instance at the close of the plaintiff’s case should consider evidence in
relation to the pleadings and the requirements of the law applicable to
the particular case (See Bidoli v Ellistron t/a Ellistron Truck & Plant 2002
NR 451 at page 453 E to F).
[14] Stier who was the first witness, and in my opinion the main witness
for the plaintiffs, testified that he worked at PriceWaterhouseCoopers
from 1978 to 1995 as a chartered accountant. The defendant also
worked at PriceWaterhouseCoopers where she, at some point, served as
an articled clerk under him. He decided to leave
PriceWaterhouseCoopers and ultimately left with the defendant and the
two formed a partnership of chartered accountants under the name and
style Stier Henke Associates in 1996.
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[15] Stier and the defendant entered into a written partnership
agreement which was signed by both parties on 20 December 1996
hereinafter referred to as the old agreement. In terms of the old
agreement the profit and loss of the partnership were shared at a ratio of
70% for Stier and 30% for the defendant. The old agreement explicitly
made provision for other matters such as, annual leave, salaries,
admission of additional parties, termination of partnership, entitlements
and benefits at termination and retirements. Most importantly, the old
agreement made provision for a restraint in trade against a party ceasing
to be a partner as reflected under clause 19 as pleaded under paragraph
5 of the relevant part of the particulars of claim quoted herein supra.
[16] Although Stier initially testified that the old agreement between him
and the defendant was turned into an oral agreement with the same
terms, save for few changes when Vente joined the partnership in 2001,
he later readily conceded during cross-examination that he cannot
remember all the terms of the oral agreement after Vente joined as a
third partner. During cross-examination it became clear that between
January 1998 and June 1999 before Vente joined as a partner, one
Schuckmann was admitted as a partner effectively resulting in the
termination of the old agreement between Stier and the defendant. This
aspect was not addressed by Stier during his evidence in chief. He was
unable to remember the terms of the agreement between the partners
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when Schuckmann joined as a partner from January 1998 to June 1999
when the latter left the partnership. He however conceded that the
partnership agreement at that point (after 1998) was oral. On the
evidence of the plaintiffs, as a whole, it is clear that the old agreement
terminated in 1998 when Schuckmann became a partner. This is
contrary to the plaintiffs’ 4 th paragraph of the particulars of claim in
terms of which it is pleaded that Stier and the defendant practised as a
partnership in terms of the old agreement from September 1996 to 31
December 2000.
[17] Stier testified further that he and the defendant offered Vente
partnership in 2001, equivalent to ten percentages of the partnership
and Vente’s stake was later increased by seven percentages in September
2003. This left the partnership’s profit/loss sharing ratio broken up as
follows, Stier 55%, defendant 28% and Vente 17%. Except for the profit
and loss sharing ratio after Vente became a partner in 2001 no other
terms on the plaintiffs’ evidence were explicitly agreed upon or could
reasonably be inferred from his evidence. He did not testify of the parties
having, at any point after the old agreement terminated in 1998,
discussed and agreed upon restraint of clauses or any other terms of the
partnership agreement, i.e., terminations, leave days, retirements,
resignations, etc.
13

[18] Stier testified that without prior negotiation or discussion with the
defendant or Vente he, prior to 15 January 2004, drafted an agreement
which was essentially the same, in terms, as the old agreement with
minor changes. After drafting it he gave it to the defendant to type as it
was a confidential document and did not want other persons in the office
to become aware of it. He does not remember how and when exactly he
got back the typed draft agreement (the unsigned document) from the
defendant. The unsigned document reflects “15 January 2004” at the
space usually meant for date of signatures. It is however not signed at
the spaces provided for signatures of the three parties.
[19] He testified that no negotiation or discussion relating to the content
and terms of the unsigned document took place after it was typed by the
defendant. He did not receive comments from either the defendant or
Vente on the terms of the unsigned document. He testified that partners
met on Thursdays of each week to discuss planning and other matters
pertaining to their partnership. He testified further that the issue of
finalisation and signing of the unsigned document was occasionally
raised after 15 January 2004, however the parties did not sign and
finalise the unsigned document until the resignation of the defendant.
He could not offer any reasonable explanation as to why that was not
done if regard is had to the fact that the parties met every Thursday and
probably saw each other every day at the office.
14

[20] Stier was taken through the old agreement by counsel for the
defendant and admitted that he extracted the terms of the unsigned
document therefrom however he introduced various major amendments.
During his testimony under cross-examination he was surprised when
he was alerted of the inclusion, and in some cases absence, of some
terms in the unsigned document when looked at against the old
agreement. At one point during Stier’s testimony under cross-
examination his evidence was as follows:-
“The Counsel’s question is: What could have been the reason
for paragraph 6 of the old agreement not to be in the new
agreement? - Lord, I cannot answer that one at the moment. I
don’t know what my reasoning was then for taking it out. If
I’ve taken it out. At the moment I am not yet saying that I
took it out. Because it’s very strange to me why I should have
taken it out.”
[21] When Stier was asked by counsel for the defendant as to why the
clause on overtime which appeared in the old agreement text does not
appear in the unsigned document, he simply stated that:-
“My comment on that is, as I stand here at the moment, I
cannot imagine any reason why I should have taken that out
in my draft. So I am putting a question mark behind it.”
15

Then counsel for the defendant continued:-
“Do you suggest that the agreement was maybe not correctly
typed?”
Stier replied: “It should have been there, yes.”
[22] The above shows directly and inferentially that even Stier himself
could not have, with the requisite animus contrahendi, tacitly entered
into the agreement alleged as reflected in the unsigned document. All
indications are, in my opinion, to the contrary. A question could be
asked – how can the first plaintiff (Stier) rely on the alleged tacit
agreement – as reflected in the unsigned document when, he himself,
was during this trial surprised by the absence or presence of some terms
in the unsigned document? He also could not clearly explain why he
materially changed some clauses of the old agreement when
incorporating such in the unsigned document.
[23] Stier did not on the face value, tender sufficient evidence that shows
that the parties tacitly entered into the agreement alleged, nor did he
point to any conduct on the basis of which it can be reasonably inferred
that the parties mutually intended to enter, and indeed did, into an
agreement as reflected in the unsigned document. Stier’s assertion that
16

the parties entered into the alleged tacit agreement was solely based on
the fact that after he provided the defendant with a draft copy of the
unsigned document to type, without prior negotiation thereof, he did not
receive any complaint from the defendant regarding the terms thereof
between January 2004 and April 2005 when the defendant notified Stier
and Vente of her intended resignation. This is, according to Stier,
sufficient proof that the parties have tacitly entered into an agreement as
reflected in the unsigned document on which the plaintiffs’ case is based.
Taking into account his evidence and that of the other two plaintiffs’
witnesses at this stage, on the face value, I am unpersuaded that, that is
the case.
[24] The second plaintiffs’ witness was Jens Christian Kuehhirt. He was
called as an expert. He was called to testify inter alia on certain customs
within the chartered accountants’ profession in particular, that parties
make use of clauses in restraint of trade in their partnership agreements
to make provision for a resigning partner, for a certain period of time, not
to accept business from clients previously served by the partnership. His
evidence was, by large measure, only relevant if this court were to find
that the parties as alleged tacitly contracted on the terms as per the
unsigned document. I have however fully considered all aspects of his
evidence that may have been relevant at this stage.
17

[25] The third and last plaintiffs’ witness was Vente. While Stier testified
that the terms of the old agreement between him and the defendant were
incorporated in the oral contract between the three parties when Vente
became a partner in January 2001, Vente testified that he was not aware
of the terms of the old agreement and further did not see it until at the
time of preparation for the trial in this matter. He did not specifically
tender any evidence to the effect that the parties ever discussed and
agreed on the terms of a restraint of trade and other incidental clauses
on which the plaintiffs’ case is based.
[26] Vente does not remember as to when he got a copy of the unsigned
document and from whom he got it. He testified that when he saw the
unsigned document he was happy with it as it incorporated what was
discussed two or three years before that. His evidence that the unsigned
document incorporated terms discussed two to three years before soon
became porous during cross-examination as it became clear on his own
testimony that there has not been discussion of the terms of the
unsigned document. Stier, in this respect, testified that until he drafted
the draft agreement around January 2004 there were no prior
discussions or negotiations between the parties. When asked by the
defendant’s counsel why the unsigned document was not signed, Vente
inter alia stated that it always happened that none of the parties at a
particular time would have a copy available for signatures. He conceded
18

that none of his partners made an offer to him to accept or reject the
terms of the unsigned document. He testified that the unsigned
document was yet to be formalized and signed until the resignation of the
defendant. He further testified that around January 2005 the defendant
indicated that she was not happy with the terms of the unsigned
document. He did not however alert Stier of the defendant’s
unhappiness until after the resignation of the defendant. He did not take
the unsigned document to Stier for discussion when he was given a copy
thereof. It is important to observe that Vente at one point, before he
changed his version, conceded during cross-examination that the oral
agreement between the parties that came into force when he became a
partner in 2001 was to continue being in force beyond 15 January 2004
until the unsigned document has been formalized and signed.
[27] The defendant’s case was put to Stier and Vente by the defendant’s
counsel inter alia to the effect that the parties did not enter into the
alleged tacit agreement, that there was no negotiation inter partes of the
terms thereof, and that defendant would in any event not have entered
into and accepted the agreement that has been materially changed in
favour of Stier if compared to the terms of the old agreement.
[28] The question is now whether or not the plaintiffs have at this stage
produced evidence on the basis of which this court might find for them,
19

in particular that the parties tacitly entered into an agreement on the
terms appearing in the unsigned document. I do not at this stage have
to decide whether the plaintiffs have established a prima facie case in the
sense that I would have to if the defendant had also closed her case.
(See Tutaleni Reinhold Shiimi’s case supra at page 5, paragraph (7)).
[29] I must point out at this stage that this is not a case where the court
is involved in determining whether the parties in addition to an
undisputed contract – further tacitly agreed on some disputed terms that
were not expressly declared. The test and approach in determining
whether tacit terms could be inferred as having been agreed upon by the
parties as found in Delfs v Kuehne & Nagel (Pty) Ltd 1990 (1) SA 822 at
827 G to J, Wilkins No V Voges 1994 (3) SA 130at 136 H to J and in
Alfred Mcalpine & Son Ltd v Transvaal Provincial Administration 1974 (3)
SA 506 (A) at 532, does not necessarily apply in this matter although
mutatis mutandis relevant in some respects. The search in this matter is
not for the tacit terms to be read into an undisputed contract but rather
whether or not the parties tacitly entered into an agreement on the terms
explicitly appearing in the unsigned document on which the plaintiff’s
case is based.
[30] It has to be determined at this stage whether or not at the close of
the plaintiffs’ case there are facts on which it might be found that the
20

parties entered, subsequent to 15 January 2004, into an agreement on
terms as reflected in the unsigned document, in particular – the terms on
the restraint of trade clauses as reflected under paragraph 5 of the
particulars of claim. Where a tacit agreement is alleged the test is
concisely set out in Gordon’s matter supra page 95, I to J to 96 A to B
where Harms JA stated:-
“Since the case is concerned with the test for absolution at the
end of a plaintiff’s case I am obliged somewhat to restate the
ordinary test for proof of a tacit contract (Joel Melamed and
Hurwitz v Cleveland Estates (Pty) Ltd; Joel Melamed and
Hurwitz v Vorner Investments (Pty) Ltd 1984 (3) SA 155 (A) at
164G – 165 G; cf Samcor Manufacturers v Berger 2000 (3) SA
454 (T)). It was, at that stage, at least necessary for the
appellant to have produced evidence of conduct of the parties
which justified a reasonable inference that the parties
intended to, and did, contract on the terms alleged, in other
words, that there was in fact consensus ad idem. Counsel,
having been asked to point to any evidence which justifies the
inference that Rivera at the outset of the meeting had an
animus contrahendi was unable to do so. He then relied upon
acquiescence, but the question arises immediately: In what
did Rivera acquiesce? We have not been provided with any
answer.” (own emphasis)
[31] In Kropman and Others NNO v Nysschen 1999 (2) SA 567 (T) at 575
E to F, it was correctly stated that a person seeking to establish the
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existence of a tacit agreement is required to show unequivocal conduct
which is capable of no other reasonable interpretation than that parties
intended to and did in fact agree on the terms alleged.
[32] It must further be clear on the facts that from the parties’ conduct,
there was in fact consensus ad idem. (See Standard Bank of South Africa
Ltd v Ocean Commodities 1983 (1) SA 276(A) at 292 A & C. See also
Muller v Pam Snyman Eiendoms Konsultante (Pty) Ltd 2001 (1) SA 313 at
320 F to G where Comrie J stated that:-
“By analogy it could be said that a tacit contract should not be
inferred unless there was proved unequivocal conduct capable
of no other reasonable interpretation than that the parties
22
intended to and did in fact, contract on the terms alleged.”
[33] Just like in cases of inferring tacit terms in respect of which courts
have been cautioned to be continually on their guards against being
persuaded to introduce terms in contract not necessarily intended and
agreed upon by parties, in cases of alleged existence of tacit agreements
the courts should likewise not readily impose agreements on the parties.
(See K & S Dry Cleaning Equipment v SA Eagle Insurance Co. Ltd 2001 (3)
SA 652 at 657 B to D) This is even more so in case of unnegotiated,
unbargained, draconian and boundless terms sought to be inferred as
constituting a tacit agreement between the parties (See Paltex PyeHouse

(Pty) Ltd and Another v Union Spinning Mills (Pty) Ltd 2000 (4) SA 837 at
853 (G)) and the MV PROSPEROUS: COBAM N V v AEGEAN PETROLEUM
(UK) 1996 (2) SA 155 at page 164 A – B).
[34] The plaintiffs alleged in their particulars of claim that the unsigned
document was tacitly entered into subsequent to 15 January 2004 in
particular when, although not signed, the parties implemented it by
acting upon it with full knowledge of its content. There was no evidence
of any conduct from which it may be reasonably inferred that the three
parties mutually intended and in fact did enter into an agreement on the
terms reflected in the unsigned document after 15 January 2004. There
is also no evidence of implementation of the terms of the alleged
agreement between 15 January 2004 to April 2005 when defendant
notified other partners of her intention to resign. To the contrary the
defendant did not resign in terms of the provisions of the unsigned
document in particular the notice period. Further, the interest paid on
the defendant’s capital account when it was paid out was not based on
the terms of the unsigned document. It is also important that, although
the plaintiffs rely on the alleged restraint of trade clauses that ex facie
prohibit a resigning partner to accept business from former clients of the
partnership within two years after resignation, Stier testified that the
plaintiffs asked the defendant to take over some clients when she
resigned. How the plaintiffs can allege and rely on the tacit agreement
23

on the terms pleaded and yet admit having asked the defendant to take
over some clients at her resignation is beyond me.
[35] It is my finding at this stage on the evidence of the plaintiffs that
prior to and after January 2004, the parties had already been partners in
terms of an oral agreement on not so clear terms except the profit/loss
sharing ratio. It is in terms of such an oral agreement, in my opinion,
they operated until the resignation of the defendant on 31 October 2005.
No evidence was led that the restraint of trade in the terms pleaded was
one of the terms of that oral agreement. Stier himself was evidently
surprised by some terms in the unsigned document during his
testimony. This is one of many indicia that even Stier himself as the first
plaintiff did not possess the required animus contrahendi to tacitly or
expressly enter into the alleged agreement. Even if it were to be said that
one of the parties had animus contrahendi, on the face value of the
evidence of the Plaintiffs, there was inferentially no consensus ad idem
between the parties.
[36] The plaintiffs were unable to point to any conduct by the parties
that may have manifested the parties’ tacit acceptance of the terms of the
unsigned document. Their failure to do so is fatal, in my opinion, as the
parties’ minds in relation to the unsigned document, if any, were not
externally manifested – so as to reasonably infer therefrom the tacit
24

agreement as recorded in the unsigned document. See, in this respect,
South African Railways and Harbours v National Bank of South Africa Ltd
1924 AD 704 at 715 where Wessels JA stated that:-
“The law does not concern itself with the working of the minds
of parties to a contract, but with the external manifestation of
their minds. Even therefore if from a philosophical standpoint
the minds of the parties do not meet, yet, if by their acts their
minds seem to have met, the law will, where fraud is not
alleged, look to their acts and assume that their minds did
meet and that they contracted in accordance with what the
parties purport to accept as a record of their agreement. This
is the only practical way in which the Court of law can
determine the terms of a contract.”(own emphasis)
On the evidence before me, at this stage, I am unconvinced that the
plaintiffs presented evidence on the basis of which it might be found that
the parties entered into the agreement as pleaded.
[37] The plaintiffs’ case as pleaded under paragraph 6 of the particulars
of claim is that the parties tacitly entered into the alleged agreement and
implemented it with the full knowledge of its content. While it may not
be disputed that the parties had knowledge of the content of the
unsigned document, no evidence of any conduct or implementation of the
unsigned document was led. (See Simpson v Selfmed Medical Scheme
and Another 1992 (1) SA 855 at 865 (G – I).
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[38] The plaintiffs, having been unable to point to any conduct of the
parties or that of the defendant from which it could be reasonably
inferred that the parties indeed entered into the agreement alleged,
instead shifted their focus during the trial to the alleged silence of the
defendant in not complaining or declaring her unhappiness timeously
after Stier instructed her to type the unsigned document. Mr Heathcote
referred this court to a number of cases and other authorities and
implored the court to infer the conclusion of the agreement between the
parties from the alleged silence by defendant. Apart from the fact that
silence was not pleaded, the alleged silence in the circumstances of this
case cannot be said to have been sufficient to imply or infer acceptance
of the terms of the agreement. I mean no disrespect to counsel for the
plaintiffs if I state that, I have seriously considered all authorities he
referred to and found such generally beside the point in the context of
this case. I am mindful of the sentiments by Scot AJA in the MV
Prosperous: COBAM NV’s matter supra at page 165 J to 166 A – D
where he stated:-
“The argument advanced by counsel for Cobam amounted in
essence to a contention that the charterers’ apparent failure to
respond to Cobam’s telexes of 16 and 23 October 1992
referred to above constituted, in all the circumstances, an
acceptance by silence of the terms proposed in those telexes.
In English law, as in our law, acceptance of an offer will not
26

normally be inferred from silence, save in the most exceptional
circumstances (see Chitty on Contracts 26 th ed vol 1 at para
81.”(Own emphasis)
[39] While silence may in some cases, depending on the facts and the
duty to speak, if any, amount to acceptance of an offer and result in an
enforceable contract, tacit contracts are not easily inferred from silence.
On a conspectus of factual matrix before me at the close of the plaintiffs’
case I am firmly of the view that the plaintiffs failed to make out a case
necessary to foil an application for absolution from the instance. I am
reinforced in my conclusion inter alia by the fact that the parties never
discussed the unsigned document before and after typing, that there was
no offer made by any of the parties to any or other parties and further
that there was no acceptance and notification thereof to the offeror (if
any). The evidence presented by the plaintiffs militates against the
argument that the parties agreed as alleged. See in this respect Orion
Investments (Pty) Ltd Ujamaa Investments (PVT) Ltd and Others 1988 (1)
SA 583 at 587 to 588 where Dumbutshena CJ quoting Lord Denning in
another matter, restated the following:-
“It is trite that an offeror may expressly or tacitly dispense
with notification of acceptance and may indicate some other
manner of acceptance. In that case the contract is concluded
when the offeree signifies acceptance in the manner prescribed
by the offeror. That was not the case here. See Christie Law
of Contract of South Africa at 65; Joubert (ed) The Law of
South Africa vol 5 para 122; Driftwood Properties (Pty) Ltd v
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McLean (supra); R v Nel (supra; McKenzie v Farmers’ Co-
operative Meat Industries Ltd (supra).
‘This case allows no other conclusion than that the parties, at
each stage of negotiations leading to agreement, expected to be
informed of each other’s attitude. There were four agreements
prepared. The first three were rejected for one reason or
another. When Mr Eastwood drew the last draft I am certain
he did not expect it to be accepted by Mr Kassim. After all the
third draft prepared by Mr Kassim was figuratively speaking
mutilated by Mr Eastwood. And what is also important is that
it contained for the first time clause 9 which was incorporated
into the final draft as clause 20. It was a very significant
departure from the first two drafts. Mr Eastwood inserted a
number of suggestions on Mr Kassim’s draft. Mr Kassim
himself was perturbed by the delay in finalizing negotiations.
His draft agreement was meant to be the final one. It was
not.”
[40] With utmost respect, reliance by the plaintiffs on the alleged silence
of the defendant in the circumstances of this case was not of assistance
to their case: (See East Asiatic Co. (SA) Ltd Midlands Manufacturing Co.
(Pty) Ltd 1954 (2) 387 at 391 B to G). Stier admitted that the unsigned
document was his brainchild. He, after instructing the defendant to type
it, never dared to call a meeting to discuss the document or to seek
comments from the defendant and Vente. He, being the senior partner, if
expected the unsigned document to be signed and finalized as he
testified should have been in the position to see to it that, such was
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done. The other partners were entitled to maintain the silence, especially
when one was not happy with the draft.
[41] Mr Heathcote amongst other authorities relied on a statement in the
matter of I Pieters v Co Solomon, 1911 A 121 which reads as follows:-
“When a man makes an offer in plain and unambiguous
language, which is understood in its ordinary sense by the
person whom it is addressed, and accepted by him bona fide
in that sense, then there is a concluded contract. Any
unexpressed reservation hidden in the mind of the promissory
are in such circumstances irrelevant.”
The simple and immediate response is that while the statement is correct
in law, reliance thereon by Mr Heathcote in this matter and on the
plaintiffs’ evidence, escapes me. There was no plain and unambiguous
offer of the terms of the alleged agreement by Stier to either the
defendant or Vente. Stier only gave the document to the defendant to
type. In fact there was no offer, plain or not.
[42] I am finally of the view that there was no evidence at the close of the
plaintiffs’ on the face value basis of which it might be found in favour of
the plaintiffs on the crucial aspect whether or not the parties entered into
the alleged agreement on which the plaintiffs’ case is based. There
having been no evidence of a conduct from which the agreement alleged
29

could be reasonably inferred, it should follow that there was no
agreement. There being no agreement, there cannot be breach. There
being no breach, there can not be a claim for damages against the
defendant (See Wilkins No. v Voges supra at 143 at H – I).
[43] In my consideration of the law, evidence and pleadings for the
purposes of this judgment, I was cognizant of a statement of Lord Cairns
LC in another matter as quoted by Olivier JA in Seeff Commercial and
Industrial Properties (Pty) Ltd Silberman 2001 (3) SA 952 at 954 B – C,
which reads as follows:-
“…there are no cases upon which difference of opinion may
more readily be entertained, or which are always more
embarrassing to dispose of, than the cases where the Court
has to decide whether or not, having regard to letters and
documents which have not assumed the complete and formal
shape of executed and solemn agreements, a contract has
really be constituted between the partners.”
[44] I adopted a cautious approach in arriving at the decision in this
matter. I was also on guard against impetuous granting of the
absolution from the instance at this stage. The conclusion that I, in
accordance with the law and evidence, should inescapably arrive at is
however that the defendant’s application for absolution from the instance
30

should be granted. This is perfectly a case where such an application
should, in the interest of justice, be granted.
[45] In the result, the court makes the following order:-
The defendant’s application for absolution from the instance is
granted with costs.
_______________________
NAMANDJE, AJ
ON BEHALF OF THE PLAINTIFFS: MR R HEATHCOTE
INSTRUCTED BY: LorentzAngula Inc.
ON BEHALF OF THE DEFENDANT: MR R STRYDOM
ASSISTED BY: MR A SLABBER
INSTRUCTED BY: Dr Weder, Kauta & Hoveka Inc.
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