HIGH COURT OF LESOTHO
MATHE 1st RESPONDENT
MULTI-PURPOSE COOPERATIVE 2ND RESPONDENT
BANK (1999) LIMITED 3rd RESPONDENT
BY THE HONOURABLE MRS. K.J. GUNI ON THE 9th DAY OF AUGUST. 2004
An application for the dissolution of partnership.
The statute governing the creation and dissolution of partnership.
Is there any other law that is applicable in matters of partnership?
PARTIES TO THE SUIT
applicant in this matter is one LEBUSA MOTLOMELO an adult male
mosotho - residing at MAZENOD in the district of MASERU. The
respondent is LETHABELA MATHE an adult male mosotho - residing at HA
BOIKETLO LE SEKEPE, MAZENOD in the district of MASERU.
respondent is BOLIBA MULTI-PURPOSE COOPERATIVE carrying on business
as such here in MASERU. The 3r respondent is LESOTHO
LIMITED- carrying on the business of banking in this country. The
applicant herein approached this court on an urgent
basis and sought
the two types of relief in the following terms:-
with the ordinary rules pertaining to the modes and periods of
and directing that the Deputy Sheriff take possession of a mini-bus;
white and brown in colour; bearing chassis No. HB300008369;
numbers 24121954D; registration letters and numbers E 4854,
presently in the possession of the first respondent, pending
finalization hereof and/or the finalization of the ordinary relief
and directing second and third respondents to freeze all banking
accounts held by "Double LL and MM trans"
respondent, in particular;
i. account number 800836513 held by the partnership (Double LL and MM
trans) with second respondent.
ii. all accounts held by the first respondent with third respondent.
upon the respondents to show cause, if any, on a day to be
determined by the above Honourable Court why the above orders
not be made final pending the ordinary relief hereunder.
upon the first respondent to show cause, if any. on a day to be
determined by the above Honourable Court why the following
relies shall not be granted.
dissolution of the partnership.
a Liquidator with authority to realize the whole of he Partnership
assets, to liquidate the liabilities of the Partnership,
a final account and to pay to the parties
is owing to them by virtue of the Partnership Agreement.
parties leave to lead oral evidence should a need to lead to oral
the respondents to pay costs hereof only in the event of opposition.
applicant such further and/or alternative relief.
alleges that he and the 1st respondent entered with an agreement of
partnership with the object of conducting business
for the purpose of
generating profit for the joint benefit of the parties. The alleged
partnership came into being on the 10th
October, 2002. It lasted for
a period of approximately one year. The relations between the
partners deteriorated badly to the extent
that their alleged
partnership was in fact terminated. It was this state of affairs
which prompted this applicant to approach this
court and obtain the
rule nisi in the terms as set out in paragraph [ 1 ] above.
to the applicant he had the possession of the minibus which the
partners were using to generate profit for their joint
said minibus was the contribution of the 1st respondent to the
alleged partnership. The applicant contributed his
expenses to repair the minibus. In the first six months of the
partnership the applicant had possession, control and
the minibus. He accounted for the profit to the 1st respondent. In
the second half of that year for three months
the 1s1 respondent had
the possession, control and management of the minibus. It is alleged
that the 1st respondent failed or neglected
to account for the
profits to the applicant. Hence this suit.
respondent had raised a question of law which seems to dispute the
existence of the alleged agreement of partnership. It
is alleged that
the alleged partnership was not registered in terms of SECTION 2( 1)
PROCLAMATION NO. 78 OF 1957. The deed of the
alleged partnership does
not therefore comply with the terms of SECTION (5) (1) PROCLAMATION
NO.78 OF 1957.
addition the 1st respondent denies that there was any agreement of
partnership between him and this applicant. He avers that
there was a
joint venture whereby the applicant contributed is labour as a driver
for this minibus. The 1st respondent denies that
repaired at his expenses his minibus.
two respondents have not filed any opposing papers. Therefore they
must be willing and prepared to abide by the decision
reached by this
court in this matter.
REGISTRATION OF PARTNERSHIP AND ITS EFFECT
is applicable in the determination of this dispute? Is it common law
or statute law? Parties seemed to agree that it is
statute. No one
has relied on any principle of common law. Therefore the statutory
law in particular the PARTNERSHIP PROCLAMATION
78 OF 1957 is the only
applicable law. The law governing partnership is PROCLAMATION 78 OF
1957. It applies to partnership created
or entered into after that
statute was promulgated. The PROCLAMATION came into effect on the
date fixed by HIGH COMMISSION NOTICE
NO.8 OF 1958. The agreement of
partnership must be entered into in writing.
of such agreement must be recorded.(SECTION 2 PROCLAMATION 78 of
1957]. The deed of the partnership must bear the signatures
the partners who must sign before the notary or an administrative
officer who shall attest the same accordingly. Once attested
of partnership must be registered within 60 days the period of such
attestation, in the office of the Registrar, into
whose custody the
original deed shall be delivered. SECTION 2 PROCLAMATION 78 of 1957.
Where the applicant relies on a written
agreement, the onus of
proving such an agreement lies on him.
applicant is obliged in law to annex the agreement which he relies on
or the extract of the portion on which he relies. MC WILLIAM
CONSOLIDATED HOLDINGS (Pty) LTD 1982 USA (A). This applicant despite
his averment that he relies on the written agreement
which he claimed
to have attached, he did not.. There was no copy of that written
of SECTION 5 PROCLAMATION 78 OF 1957, "every deed of partnership
must record the date of the formation of the partnership-
of the partners and their addresses, the purpose for which the
was formed and the period of its duration, etc [as set out in the
Section 5]. The applicant has not alleged or proved
requirements set out in SECTION 5 OF THE PARTNERSHIP PROCLAMATION
were complied with. Therefore, there is no partnership
matter. The applicant is not entitled to claim on the basis of the
partnership if none existed. On this ground alone this
must fail. IT IS THEREFORE DISMISSED WITH COSTS.
Applicant: Mr. Dichaba
Respondent: K.E.M. Chambers
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law