CASE NO.:	I 3078/2007
IN THE HIGH COURT OF NAMIBIA
In the matter between:

BUHRMANN & PARTNERS CONSULTING
ENGINEERS								    PLAINTIFF
and
GUNTHER GARBADE							 DEFENDANT
CORAM:	NDAUENDAPO, J

Heard on:		02 August 2010
Delivered on:	21 May 2012
___________________________________________________________________
JUDGMENT:
NDAUENDAPO, J:   [1]	The Plaintiff, Buhrmann & Partners Consulting Engineers, a firm of Consulting Engineers instituted an action against the Defendant, Gunther Garbade (a farmer and Property Developer).
	In the summons the Plaintiff claims:
‘1.	Payment of the amount of N$1 287 530.73 being the amount due and 	`payable by the Defendant to the Plaintiff in respect of professional 	consulting services rendered by the Plaintiff to the defendant from 	March 2005 until 	December 2006 at the Defendant’s special instance 	and request, which amount, despite due demand, the Defendant 	refuses and/or neglects and or fails 	to pay:
2.	Interest on the aforesaid amount at the rate of 20% per annum a 	tempore morae, until date of final payment.
3.	Cost of suit,
4.	Further and/or alternative relief”
	The defendant filed a notice of intention to defend.  The Plaintiff then 	filed a declaration.  For the purpose of this judgment, I will not repeat 	all the allegations in the declaration except paragraph 3 which states 	as follows:
3.	“On or about the period March 2005 to December 2006 at Windhoek, 	the Defendant acting in person entered into various oral agreements 	to engage the services of the Plaintiff represented by Siegfried Teetz 	and/or P Roland and/or R. Trossbach –to act as engineers and to 	provide professional consulting services to Defendant in the Am 	Weinberg Development situated on Erf 1944, Klein Windhoek, 	Windhoek”.

	The Defendant raised a special plea to the effect that:
	“Defendant pleads that the action should not have been instituted 	against him, as he at all relevant times acted for and on behalf of Jary 	Enterprises 136 CC, a close corporation duly registered as such in the 	Republic of Namibia which should be the correct Defendant,”
	I must also mention that Defendant pleaded on the merits, but for the 	purpose of this judgment I will not deal with that.
	The Plaintiff filed a replication to the Defendant’s special plea as 	follows:
	“AD DEFENDANT’S SPECIAL PLEA.
2.	In the alternative, and in the event of it being found that Defendant 	acted for and on behalf of Jary Enterprises One Hundred and Thirty 	Six CC, Plaintiff replies that Defendant is estopped from denying that 	he is the correct party to be cited in these proceedings by virtue of the 	following:
2.1	On numerous occasions prior to and after entering into the various 	oral agreements to engage the services of the Plaintiff as referred to in 	paragraph 3 (three) of the Plaintiff’s declaration the Defendant by 	words and or conduct intentionally, alternatively negligently, further 	alternatively innocently represented to Plaintiff that he was the 	contracting party with the Plaintiff;
2.2	The Defendant’s words and/or conduct referred to above inter alia 	consisted of the following:

2.2.1	The Defendant never indicating (sic) that he was acting on behalf of 	Jary 	Enterprises One Hundred and Thirty Six cc;
2.2.2	The various correspondence between the parties and particularly the 	appointment of the Plaintiff as the professional engineers for the 	project;
2.2.3	The identification of the Defendant as the client in the statement of 	account sent by the Plaintiff to the Defendant;
2.2.4	The Defendant generally conducted himself as if he was the 	contracting party 	in respect of the project.
2.3	Acting on the belief of the correctness of the aforesaid representations, 	Plaintiff was induced, to its detriment, to enter into the agreements 	aforesaid with the Defendant, ostensibly as the contracting party to 	such agreements’.
[2]	At the commencement of the hearing Mr Mouton, acting on behalf of 	the defendant, urged the Court to adjudicate on the special plea 	without going in the merits of the case.  He submitted that if the 	Defendant was to be successful with the special plea then the merits 	will not arise and that will dispose of the matter.  Mr Corbett, acting 	on behalf of the Plaintiff, submitted that the Court must hear the 	whole matter (i.e special and the merits) in one go.  He submitted that 	the issues relating to the special plea are intertwined with the merits 	of the case.  I agreed with the submissions by Mr Mouton and ruled 	that the special plea must first be adjudicated upon for the simple 	reason that if the special plea is upheld, it will not be necessary for 	the Court to hear all witnesses (including expert witnesses) some 	who are from South Africa and who have been lined up to give 	evidence and a lot of time and money (I suppose) would have been 	saved.  On the other hand, if the special is dismissed those witnesses 	must 	unfortunately come and testify.  I do not agree with Mr Corbett 	that the issues are so intertwined that the special plea cannot be 	decided on its own without referring to the merits.  The way I see it, is 	that the special plea has nothing to do with the merits.  It merely has 	to do 	with whether the defendant was the correct party to be sued or 	not.  
	THE DEFENDANT’S CASE 
[3]	Mr Garbade testified that during 2003 his wife and her sister who 	inherited Erf. 1944 from their parents transferred the Erf into Jary 	Enterprises One Hundred and Thirty Six Close Corporation.  Erf 1944 	is a huge Erf measuring 17250m2 and situated in Klein Windhoek.  	The old house on the Erf was converted into a restaurant.  Mr Roland, 	an engineer and a partner in the plaintiff, helped them with the 	conversion.  That was done in 2003 and completed in 2004.  The 	conversion of the house into a restaurant was part of the bigger 	project known as Am Weinberg Estate.  In the sale’s brochure the 	project is described as “the Am Weinberg Estate is a unique 	combination of Health and Beauty service, residential entertainment 	facilities as well as a limited amount of shop space which will mutually 	benefit and complement other activities on the Estate, the construction 	is estimated to be completed in the second half of 2007.” Mr Garbade 	further testified that he orally appointed the plaintiff as consulting 	civil and structural engineers to the project.  In a letter dated 11 	June 2003 (exhibit A) from the Plaintiff signed (by Roland) the verbal 	appointment is confirmed.  The letter is addressed to “the manager 	Am Weinberg wellness centre” and it states:
	‘Dear Sir
	We would herewith like to confirm your verbal appointment as 	Consulting Civil and Structural Engineers for the Am Weinberg project.  	As was agreed work done to date will be invoiced only once the projects 	gets the “green light “ i.e. Final detail planning is started with.  We trust 	you agree with the above. (My underling)
	Yours Faithfully
	Signed Roland”
	Mr Garbade testified that a deferred payment to work already done by 	the plaintiff was because Jary Enterprises One Hundred Thirty Six cc 	had no funds available at the time and would only pay once the 	project is on the way.
[4]	Mr Garbade testified that he engaged the services of Bob Mould 	Architects for the project as the principal architect of the project and 	to that effect an agreement (Exhibit ‘B’) between Jary Enterprises One 	Hundred Thirty Six and Bob Mould Architects was entered into.
	He also testified about a draft unsigned contract between Jary 	Enterprises One Hundred Thirty Six cc and the plaintiff (Exhibit ‘C’) 	which was drafted by the late Arnold van Zyl which reflected that Mr 	Garbade was not the contracting party but Jary Enterprises One 	Hundred Thirty Six and that payment was deferred to a later stage 	when funds were to become available or the project being financed.  	He testified that exhibit “C” was given to Mr Teetz for signature but 	that such draft agreement was never signed by the plaintiff. 
[5]	Mr Garbade also testified that it was agreed with all the professionals 	that because Jary Enterprises One Hundred Thirty Six cc had no 	funds available that payment for work done or to be done would be 	paid at a later stage when the bigger project will be financed and 	that ‘we get finance for the project’.  
[6]	He further testified that the agreements with the professionals 	including the plaintiff was at all times with Jary Enterprises One 	Hundred Thirty close corporation.  He was not acting in his personal 	capacity and he was at all times acting on behalf of the Jary 	Enterprises One Hundred Thirty Six cc.  He also testified that, 	although the invoice for fees from the plaintiff, exhibit ‘D’ was 	addressed to him in his name, he did not find that strange as he was 	the manager of the project.  The bigger project did not materialize as 	they did not secure funding for the project.
	Mr Garbade also testified about two letters from Stubenranch dated 2 	July 2004 and one from the plaintiff, Buhrmann & Partners, dated 22 	November 2005 addressed to TransNamib which clearly show that 	Jary Enterprises One Hundred thirty Six cc was the client of the 	Plaintiff and was the contracting party.  I will return to those letters 	when analysing the evidence of Mr Teetz.
	OBERPRIELER
[7]	He testified that he was involved in the Am Weinberg project as the 	coordinator to develop the business plan from 2003 until early 2007. 	He testified that he received exhibit “C” draft unsigned agreement 	from the late Arnold Van Zyl together with more or less similar 	agreement so contracted between Jary Enterprise One Hundred 	thirty Six cc and Seelenbinder Consulting Engineers. Exhibit “C” 	was taken to Mr Teetz by Mr Garbade.  He testified that he never 	received exhibit ‘C’ back from the plaintiff.
 	He testified that the idea was that all professionals would enter into 	agreements with Jary Enterprises One Hundred Thirty Six cc so that 	they knew where they stood because they would 	be paid at a later 	stage once the project kicked off or at the end of the project either in 	cash or in kind (acquire units that would be constructed as part of 	the 	project as in lieu of payment for their fees).
	On 26 and 27 July 2006 he sent e-mail correspondence to Teetz.  The 	e-mail of 26 July 2006 states:  “I still need to know from you what 	your fees are please and also that we can finalise the contract”.
	The one of 26 July 2006 was read because he was on tracking device.
	The e-mail dated 27 June 2006 from Oberprieler to Teetz states: “I 	have not heard anything from you yet concerning the 	contract from 	Koep & Co again.  Were you able to obtain the contract yet?” He 	testified that in these e-mails he requested to receive the signed 	agreement between Jary Enterprises One Hundred Thirty Six cc and 	the plaintiff He testified that exhibit “C” was never signed nor returned 	to them.  That was the case for the defendant.
	CASE FOR PLAINTIFF 

	Siegfried Teetz 

[9]	Teetz testified that he is a partner in the plaintiff and a qualified 	engineer.  He testified that he was approached by the architect Jaco 	Wasserfal to be involved in the bigger project but he was also involved 	in the earlier stage of the conversion of the house into the restaurant.  	He testified that from the start he was put under the impression that 	Mr Garbade was the contracting party and not Jary Enterprises One 	Hundred Thirty Six cc.  He never bothered to enquire from Mr 	Garbade whether he was acting personally or on behalf of a Close 	Corporation.  He testified ‘that we do draft a lot of agreements and 	it is really important for us to get the right employer in specified 	(sic) in the contract.  We do contracts on a daily basis so that is 	why it is important for us to get the terms right and that Mr 	Garbade was our client.’  He testified that the client was Mr Garbade 	and not Jary Enterprises One Hundred Thirty Six cc.  Mr Teetz further 	testified that the word ‘the manager’ in exhibits ‘A’ referred to
	 Mr Garbade representing AM Weinberg Wellness Center and not in 	his personal capacity. He also testified that there were various site 	meetings attended by him and Mr Garbade and he never told him that 	he was acting on behalf of a Close Corporation.  He testified that: ‘we 	never dealt with somebody else, Mr Mouton. We always dealt with Mr 	Garbade.  There was never somebody else.  Also at the time of 	Wasserfall was still in, in his capacity as architect number One, if I 	many call it like this, there was never Jary Enterprises or a cc 	whatever, never’.

	He further testified that, regard to the magnitude of the project, in the 	region of N$ 50 million, he did not bother to ascertain whether Mr 	Garbade had personally such funds available or not.  He testified that 	all correspondence and payment certificates were made out to Mr 	Garbade.  He also testified that in March 2007 there was   a meeting  	between the partners of the plaintiff and Mr Garbade because of the 	outstanding account and they wanted to know how he (Garbade) 	intended to pay the outstanding account of their fees.  He requested 	more time to make the funds available.  He did not claim that the 	account was wrongly addressed to him nor did he dispute the claim 	amount of N$1 287 530.73 for professionals services rented by the 	plaintiff.  Mr Garbade undertook to pay the outstanding fees in 	installment of N$20 000.00, but that offer was rejected.

	He further testified that he was not aware of any documentation 	before the commencement of these proceedings which showed that 	Jary Enterprises One Hundred and Thirty Six cc was the contracting 	party.

[10]	 Mr Teetz also testified that during November 2006 the defendant 	asked him whether he would consider taking up members’ interests in 	the close corporation that owned the property.  He informed him 	that he would discussed that with his partners.  He discussed it and 	the offer was turned down. 
	During cross examination, Mr Mouton, asked him to show any 	documentation where Mr Garbade expressly said to him that Mr 	Garbade is    involved in this project in his personal capacity?  He  	replied that there was none. 
	He was also asked to explain why the Plaintiff addressed many letters 	to Mr. and Mrs Garbade? ‘On many occasions Mrs Garbade was also 	present, but she never, she never got into the, if you can call it again 	negotiations she was present’. He replied.
ROLAND 

[11]	He is a partner in the plaintiff and a professional engineer.  He knew 	the defendant for over 30 years.  He testified that he was approached 	by the defendant initially to assist with the conversion of the old 	house into a restaurant.  He later worked on the bigger project which 	was to build a Wellness Centre, small hotel, coffee shop and houses.

	He testified that it was not of any concern to him who owned the 	property.  Because in many of the projects that they do the developer 	is not the owner of the land.
	He testified that it was not his concern who will pay his fees and in 	this case Mr Garbade was the one to pay his fees.    He was asked to 	explain why he addressed. Exhibit ‘A’ to “the manager” ‘can you 	explain why it was addressed to the manager?........I would not know 	at this stage really why the manager. I cannot remember.  Who did 	you understand to be the manager?  Mr Garbade,’ the Court then 	asked him:  ‘Sorry, what is your explanation?  Can you just repeat 	that again?  Exactly why I called the manager, I am not sure, but it 	was always Mr Garbade in my eyes.  But what was your 	understanding of the word, the manager?  The one that manages, the 	one that instructs, I would say’.

 [12	He testified that Jary Enterprises One Hundred Thirty Six cc was not 	the contracting party. He was asked about Exhibit “G6” which was a 	letter written by himself to Mr and Mrs Garbade dated 12 November 	2003.  Why did you refer to Mr and Mrs Garbade in that letter?  	Maybe I discussed the content with both of them together, but I am 	not sure’.  He also testified about a meeting between the partners and 	Mr Garbade about the outstanding account and at that meeting Mr 	Garbade asked for more time to pay the account. He did not dispute 	the account.  He offered to pay N$20 000.00 per month, but that 	offer was rejected.
	That was the case for the plaintiff 

	ANALYSIS OF THE EVIDENCE
[13]	On 2 July 2004 Mr Andries Cloete, on the letterhead of Stubenrauch 	Planning Consultants cc Town and Regional Planners, addressed a 	letter to TransNamib which clearly showed that Jary Enterprise One 	Hundred and Thirty Six cc was the client and the contracting party.   I 	quote the letter verbatim (exhibit) “K”?

										2 July 2004
W/02142
The General Manager
TransNamib Holdings
Private Bag 13204
WINDHOEK

Att. Mr.  B Black

A)	LEASE OF A PORTION OF PORTION 4 OF KLEIN WINDHOEK 	TOWN AND TOWN LANDS NO. 70.
B)	RELAXATION OF SOUTHERN BUILDING LINE-ERF 1944, KLEIN 	WINDHOEK.
1.	INTRODUCTION
On behalf of Jary Enterprises One Hundred and Thirty Six cc., the owner of Erf 1944, Klein Windhoek, we herewith apply for the lease of a portion of Portion 4 of the Klein Windhoek Town and Townlands No. 70.
Erf 1944, Klein Windhoek is situated between Jan Jonker Road and the railway reserve. The City of Windhoek granted permission for the development of the following on Erf 1944:
•	Dwelling units and dwelling houses with a maximum floor area of 5200m2.
•	Restaurant & shops with a maximum floor area of 500m2
•	A hotel with a maximum floor area of 2700m2
•	A health-resort & wellness centre with a maximum floor area of 1800m2

2.	THE EXISTING SITUATION
	The Southern boundary of Erf 1944 borders with the reserve of the 	Windhoek-Gobabis railway line.  Within this area, the railway line is in 	a cutting, approximately 3 metres below the natural ground level.
	It will be noted from the attached plan that we are also in the process of 	subdividing Erf 1944 into Portion A and Remainder.  Until the 	registration of the body-corporate for Portion A/1944, the ownership of 	both portions will remain the same.

3.	THE PROPOSED LEASE AREA AND TERMS
	Attached please find a diagram of the proposed lease area, measuring 	4.556m2.
		We would like to report that during a site inspection on 2 July 2004 it 		was found that the building contractor responsible for building works 		on the site has already erecting a fence along the proposed boundary of 		the lease area.  We were informed that the fence was erected on the 			proposed lease area.  We were informed that the fence was erected on 		the proposed lease boundary due to the following:
		Due to the building activities, the area had to be fenced off. As the civil 		engineering division from TransNamib informed the development team 		that no technical problems are foreseen regarding the proposed lease.
		As the terrain is more level at the proposed lease boundary and much 		easier for the erection of a fence.

	It is not that the proposed lease was taken for granted.  The erection of 	the fence was rather a matter of fencing the area off as quickly as 	possible on the most suitable terrain.
	The proposed lease area is to be used for gardening purpose.  No 	buildings are to be erected in the area.

	Jary Enterprise One Hundred and Thirty Six cc would like to lease 	the proposed portion of Portion 4 of the Klein Windhoek Town and 	Townlands No. 70 for a period of 9 years and 11 months, 	renewable.

4.	RELAXATION OF BUILDING LINE

	Due to the topography the owners of Erf 1944 would like to construct 	the residential units as close as possible to the Southern boundary of 	Erf 1944.  We herewith request your permission for the relaxation of the 	existing building line to construct residential unites on the southern 	boundary of Erf 1944, Klein 	Windhoek.

	We trust that you will support the application and remain.

	Yours faithfully

	Signed
	 Andries Cloete.’

	A copy of that letter was faxed to Mr Teetz by Stubenrauch Planning 	Consultant and based on that Mr Teetz, on the letterhead of the 	plaintiff (Buhrmann & Partners Consulting Engineers), addressed a 	letter to TransNamib Holdings Limited.  (Exhibit “L”) The letter states:

	TransNamib Holdings Limited			          22 November 2005
	By hand
	WINDHOEK

	Att:	Mr D. du Plessis
	Dear Sir,

	AM WEINBERG-PERMISSION FOR CONSTRUCTION ON SOUTHERN 	ERF BOUNDARY-ERF 1944 KLEIN WINDHOEK.

	Our telcon of 22 November 2005 refers.

	We herewith submit a copy of all documentation for your valued perusal 	and comments, which were issued already to Mr.  J Engelbrecht of 	TransNamib during October 2005.

	Attached hereto please find a colored architectural layout indicating the 	proposed development of the Erf 1944 Klein Windhoek, as well as our 	AO contour survey showing Erf boundaries, the existing railway line 	including sections of possible future extension to the railway line all as 	requested by Mr Engebrecht.

	Background:
	The proposed development is situated in 13 Jan Jonker Road 	Windhoek.  Luxurious residential units, a restaurant, shops and offices 	as well as a wellness center are to be constructed on the site during 	2006/2007.  The residential units are designed along the Southern 	boundary of the Erf adjacent to the TransNamib railway reserve of the 	Windhoek-Gobabis railway line (see attached drawings).

	In 2004 our client had applied to TransNamib to lease a portion of 	the adjacent land for a period of +-9 years renewable to be used for 	additional gardening purposes on which no structure would be built 	(see copy of application attached).  (My underlining’s)

	The residential units were designed in such a way that the outside 	living area behind each unit would benefit from the additional land to 	be leased from TransNamib.
	The application to have small portions of the present embankment 	excavated for the above –mentioned use was presented on a drawing to 	Mr. Engelbrecht during October 2005.

	Two weeks ago Mr Engelbrecht informed us telephonically that the 	property department of TransNamib has turned down our applications 	for the additional embankment excavation.  
	He furthermore informed us that no permission would be granted by 	TransNamib to erect any building on the Erf boundary, affecting 	houses, F5 F7 & F10.

	As we have to date not received any final decision in writing from 	TransNamib we would therefore like to enquire whether the decision 	given to us by Mr Engelbrecht would be reconsidered.

	Awaiting your reply in this matter we remain.

	Yours faithfully

	Signed by S.R.TEETZ ’’

[14]	Mr Teetz testified that he read the faxed letter to him by 	Stubenraunch Plainning Consultants and based on that letter he 	addressed the letter to TransNamib on the same date. The evidence by 	Mr Teetz that he 	may have overlooked or it was an oversight not to 	pick up that Jary 	Enterprise One Hundred  Thirty Six cc was the 	client is simply not true. I say so because he earlier (before the 	letters were produced in Court) testified that, “Mr Corbet, we do 	draft a lot of agreements and it is really important for us to get the 	right employer in specified (sic) in the contract.  	We do contracts on a 	daily basis.  So that is why it is important for us 	to get the terms 	right and that Mr Garbade was our client”   from his own evidence 	Mr 	Teetz must have known that the client was Jary Enterprise One 	Hundred Thirty Six cc and not Mr Garbade.  How Mr Garbade could 	have entered into a lease agreement with TransNamib, whilst he did 	not apply to enter into such an agreement and also not the owner of 	Erf 1944, is beyond me
	.  

	In the letter to TransNamib Mr Teetz clearly refered to our client as 	being Jary Enterprises One Hundred  Thirty Six cc.  It is Jary 	Enterprises One Hundred  Thirty Six cc that applied to TransNamib in 	2004 to lease the piece of land and not Mr Garbade.  In that letter i.e. 	application to lease it is clearly stated that the owner of Erf 1944 is 	Jary Enterprises and not Mr Garbade.  Mr Teetz is being untruthful	when he informed the Court that he never heard about Jary 	Enterprises 	One Hundred Thirty Six cc until when the case came to 	Court.  The letter by Stubenrauch also corroborates the evidence of 	Mr Garbade that all the professionals knew that he was acting on 	behalf of Jary Enterprises One Hundred  Thirty Six cc and that is why 	in that letter (from Stubenraunch) they stated that they were acting on 	behalf of Jary Enterprises One Hundred Thirty Six cc and not Mr 	Garbade.  There is also the agreement with the architect Bob Mould –	which clearly states that the agreement was with Jary Enterprises 	One Hundred Thirty Six cc and of course the unsigned agreement 	exhibit “C” between Jary Enterprises One Hundred Thirty Six cc and 	the plaintiff which he took to Mr Teetz but never signed.
[16]	There is also nothing in his (Mr Garbade) conduct which conveyed to 	the plaintiff that he acted in his personal capacity.  Exhibit “A” was 	addressed to ‘the manager’ which confirmed the 	verbal agreement of 	appointing the Plaintiff as consulting civil and structural engineers to 	the Am Weinberg project. 
	By addressing the letter to ‘the manager’ it clearly showed that the 	plaintiff represented by Mr Roland understood that Mr Garbade was 	the manager of the AM Weinberg wellness Centre and not the owner 	and or acting in his personal capacity.  The concise Oxford 	dictionary (ninth edition) defines the word manager as a person 	controlling or administrating a business or part of a business’.
[17] Mr Teetz also testified that:  ‘We always dealt with Mr Garbade.  There 	was never somebody else’.  A close corporation can never act on its 	own, a natural person(s) must act on behalf of the close corporation 	and 	in this case it was Mr Garbade who was the manager and  	acting on 	behalf of the close corporation and that is why they 	always dealt with 	him.  
	Having regard to the evidence adduced and on the balance of 	probabilities , I am satisfied that Mr. Garbade was acting on behalf of 	Jary Enterprises One Hundred Thirty Six cc and not in his own 	personal capacity .  
	ESTOPPEL AS A DEFENCE:

[18]	The Plaintiff relies on the doctrine of estoppel in the event that the 	special plea is upheld.  
 
[19]	Rabie and Sonnekus (The law of Estoppel in South Africa JC 	Sonnekus and Rabie 2000 P3) define the doctrine of stopped, as 	follows “the doctorine as applied in the courts of South Africa 	may be said to amount to the following, namely; that where a 	person (the representor) has by his words or conduct made a 	blameworthy representation to another person (the representee) 	and the latter believing the representation to be true, acted 	thereon and would suffer prejudice   if the representor were 	permitted to deny the truth of  the representation made by him, 	the  representor may be estopped, that is precluded, from 	denying the truth of his representation if the maintaining  of the 	representation will not be in conflict with public policy.”

[20]	The elements of the doctrine are:

[20.1]	Representation by word or conduct of a certain factual position 	made by the representor to the representee.  In Eysselinck V 	Standard Bank Namibia Ltd 2004 NR 246-252D 253C O’linn  JA 	relied on a quotation from Rabie the law of Estoppel in South Africa 	law and held that: “as will be shown below, in South African law an 	estoppel can be based on a representation by conduct if the 	representee can show that he reasonably understood the 	representation in the sense contended for by him and that the 	representor should have expected that his conduct could mislead the 	representee.  It is not required that he must show the conduct in issue 	amounted to a precise and unequivocal representation.”

[20.2]	 The onus rests on the plaintiff, who relies on estoppel to plead 	and prove its essentials
[21]	“A representee can only base an estoppel on a representation made by 	conduct if he can show

(a)	that he reasonably understood the representation in the sense 	contended for by him and;

(b)	that the representor  should reasonably have expected that his 	conduct could mislead the representee (c)the test in both (a) and 	(b) is objective, the norm in (a) being the understanding of a 	reasonable 	man and (b) the expectation of a reasonable man.
		See: PJ Rabie The Law of Estoppel in South Africa P37.

	When a representation is made by silence it is important that the 	silence should have occurred when there was a duty on the person 	whom it is sought to estop to speak or act, Rabie states that:  “as to 	when such a duty exists, the law appears to be that the duty 	arises when the person whom it is sought to estop should 	reasonably have expected, in the light of the relationship existing 	between  himself  and the other party concerned and all the 	relevant facts of the case, that his failure to speak or act could 	mislead and cause prejudice to the other party”  see  M Pupkewitz 	& Sons (Pty) Ltd t/a Pupkewitz Megabuilt v kutz  2008 (2) NR 775 	sc at 784, PW 15.

	[22]	 Another requirement is that the party acted on the correctness 
		of the facts as presented and that the party, who acted or failed to act, did so to his detriment.

[23]	The evidence adduced was that it was the plaintiff who addressed Mr 	Garbade as “the manager” of AM Weinberg when confirming the verbal 	appointment as structural and civil engineers to the project.  Mr Teetz 	in his evidence also testified that Mr Garbade when addressed as ‘the 	manager’ was acting in a representative capacity. 
	So, the plaintiff understood from the very beginning that Mr Garbade 	was acting in a representative capacity.  There was no duty on him 	to rectify that as the plaintiff correctly understood that he was acting 	in a representative capacity.  There was no letter or documentation	from Mr Garbade stating that he was acting in his personal capacity.
	To the contrary, Mr Teetz in his letter to TransNamib referred to the 	client as Jary Enterprises One Hundred and Thirty Six cc and not Mr 	Garbade.  The plaintiff 	addressed letters to Mr and Mrs Garbade 	because they were acting on behalf of the close corporation.
	Mr Corbett submitted that the defendant admitted liability in evidence 	for the plaintiff’s claim.  He referred to the evidence by the plaintiff 	when he said “there has never been on my intention that or our 	intention as I later say now that the fees of the account of Buhrmann 	and Partners would not be paid” He also referred to the evidence by 	the defendant that he undertook to pay off the full account of the 	plaintiff in the amount of N$ 1287,530.73 by way of installments of 	N$20 000.00 per month.  Nowhere in his evidence did Mr Garbade say 	that he is liable to pay the account in his personal capacity, he was 	always acting in a representative capacity.
	Mr Corbett also submitted that numerous letters from the plaintiff 	were addressed to Mr Garbade where reference was made to him as 	the client and that in no such instances did Mr Garbade ever wrote 	back or even communicate to plaintiff that this was incorrect and that 	the client should be referred to as Jary Enterprises.
	As I pointed out there was no duty on Mr Garbade to correct that 	because of the very first letter from the plaintiff confirming the 	appointment of the plaintiff as civil and structural engineers 	addressed to “the manager” and that showed that the plaintiff knew or 	understood from the very beginning that Mr Garbade was acting in a 	representative capacity.
	Mr Garbade did not make any representation in writing or by his 	words or conduct conveying to the plaintiff that he was acting in his 	personal capacity.  In all the circumstances the defence of estoppel 	cannot succeed.

	In the result, I make the following order:

	1.	the special plea raised by the defendant is upheld.
	2.	the defence of estoppel raised by the plaintiff is dismissed.
	3.	the plaintiff is ordered to pay the costs of the defendant, such 		costs to include the costs of one instructing and one instructed 		counsel.

___________________
NDAUENDAPO, J

ON BEHALF OF PLAINTIFF:					    ADV.  CORBETT
INSTRUCTED BY: 					  LORENTZ ANGULA INC.

ON BEHALF OF THE DEFENDANT:				         ADV MOUTON
INSTRUCTED BY:						KOEP & PARTNERS