JUDGMENT

SMALBERGER, JA

[1] The appellant (as applicant)
sought an order in the High Court dissolving the partnership he
alleged existed between himself
and the (first) respondent, and
certain ancillary relief. The matter came before Guni J. The
learned Judge dismissed the application,
with costs. She held that
there could not have been a partnership cognizable in law between
the parties because of non-compliance
with the relevant provisions
of the Partnerships Proclamation 78 of 1957 (“the
Proclamation”). The appellant appeals
against her finding in
that regard. The appeal raises the question whether the Proclamation
precludes the existence of what would
otherwise be a valid and
enforceable partnership under the common law.

[2] The appellant alleged facts in
his founding affidavit which prima
facie satisfy the requirements for a
common law partnership i.e. a legal relationship between himself and
the respondent to carry on
a lawful undertaking to which each
contributes something with the object of making, and sharing,
profits (cf Purdon v Muller
1961 (2) SA 211 (A) at 217; Novick v
Benjamin 1972 (2) SA 842 (A) at 851).
The respondent in turn, in his answering affidavit, admitted to the
existence of what he referred
to as a “joint venture”
between the parties, the terms of which he claimed differed in
certain material respects
from those alleged by the appellant. What
is clear is that the parties were associated in a transportation
undertaking the object
of which was to make and share profits; the
precise terms of their arrangement, however, are in dispute.

[3] The preamble to the Proclamation
records that its purpose is “[t]o consolidate the law relating
to partnerships and
their registration ...” Its relevant
provisions are couched in peremptory terms. Thus section 2 (1)
provides that:

“The terms of every
partnership agreement entered into after the commencement of this
Proclamation shall be recorded in a deed
of partnership, which shall
be signed by all the partners before a notary or an administrative
officer, who shall attest the
same accordingly. Such deed shall be
registered ...”.

[4] Section 5 (1) sets out what
every deed of partnership “shall record”. Included are,
inter alia,
the date of formation of the partnership; the full names and
addresses of the partners; the purpose of the partnership; the

period for which the partnership is formed; the place or area in
which the partnership business is to be carried on; the amount
of
capital or the nature and value of the services or assets brought
into the partnership by every partner; and the duties and
degree of
participation of each partner in the business of the partnership.

[5] In terms of section 1 of the
Proclamation a partnership means “any legal relationship
between two or more persons, but
not exceeding twenty persons, who
carry on, or intend to carry on, any lawful business or undertaking
to which each contributes
something, with the object of making a
profit and of sharing it between them”.

[6] The Proclamation is a
commendable legal enactment. By requiring that a partnership
agreement should be in writing, be registered
and record the details
set out in section 5 (1), it ensures certainty in relation to
partnership arrangements, obviates disputes
and discourages false
claims. The legislature’s intention to achieve these aims
would be negated if a common law partnership,
with none of the
safeguards provided by the Proclamation, were still to be
recognised. While it is true that there is no express
provision in
the Proclamation which excludes common law partnerships, if regard
is had to the Proclamation’s stated purpose,
the aims it seeks
to achieve and the peremptory, all-embracing nature of its
provisions, such exclusion must inevitably follow
by necessary
implication. I conclude, therefore, that the law of Lesotho does
not recognise as valid and enforceable a partnership
agreement
which, although it satisfies the essential requirements for a
partnership in terms of the common law, fails to comply
with the
provisions of the Proclamation.

[7] The appellant’s counsel
suggested that some recognition of a common law partnership was to
be found in the provisions
of section 28 (5) of the Proclamation.
In my view that section does not afford any legal recognition to an
unregistered partnership.
It merely allows a form of equitable
relief in circumstances where the section applies.

[8] It is common cause that the allegations made by the
appellant, and the written agreement on which he relied, in support
of
his claim that a partnership existed between himself and the
respondent do not satisfy the requirements of the Proclamation.
There was accordingly no valid partnership to found the relief he
sought. In the circumstances Guni J was correct in dismissing
his
application.

[9] It does not necessarily follow
that the appellant, assuming his version of the facts to be correct,
is remediless. He may
well have a cause of action founded on
contract (other than partnership) which would entitle him to a
debate of account (cf Rectifier and
Communication Systems (Pty) Ltd v
Harrison and Others 1981
(2) SA 283 (C) at 286), or a claim based on enrichment. I express
no definite view on the matter.

[10] In the result the following order is made: The
appeal is dismissed, with costs.

J.W. SMALBERGER

JUDGE
OF APPEAL

I concur.

M. M. RAMODIBEDI

JUDGE
OF APPEAL

I concur.

J. J. GAUNTLETT

JUDGE OF APPEAL

For the Appellant: Mr Loubser

For the First Respondent: Mr K.E. Mosito