2

protection equipment to businesses in need of such equipment for their
employees, and to retailers for onward sale to the general public.
2 Although Mr. Antonie, who appeared for the plaintiffs, d id not explicitly
concede this, it was obvious by the end of the trial that the first defendant,
Rondo Industrial, had been erroneously joined to these proceedings in the
mistaken understanding that it was involved in the joint venture. The reality,
as all parties now accept, is that Rondo Industro was a party to the joint
venture, but that Rondo Industrial, which is the first defendant in these
proceedings, was not. As best as I can tell, the error is explained by the fact
that Mr. Berger has had interests in both companies, and their similar names
led to the misjoinder of Rondo Industrial.
3 This trial action concerns the fate of money owed as a result of the sale of
defective thermometers to the joint venture, and the onward sale of those
thermometers to Takealot, a well-known online retailer. In mid-2020, after the
end of what has become known the “hard” lockdown, transmission of the
Covid-19 virus was prevented, in part, by temperature screening at entrances
to retail outlets, places of employment, and other venues where members of
the public were likely to gather. As a result, demand for electronic
thermometers spiked, and the joint venture sought to capitalise on the
opportunity to meet this demand.
4 Accordingly, Rondo Industro, acting on behalf of the joint venture, purchased
a large quantity of thermometers from a company known as Cardona (Pty)
Ltd, which was controlled by a Mr. David Fine. The purchase price was in the
region of R5.6 million. Calasca, also acting on behalf of the joint venture, then

3

sold the thermometers on to Takealot, for onward sale to the general public
on Takealot’s website.
5 It turned out that the thermometers were defective, because they did not meet
the requirements the South African Health Products Regulatory Authority
prescribed for such devices. Takealot returned the thermometers and
demanded a refund from Calasca, which Calasca paid in the form of debits to
its Takealot account. Calasca also refunded Rondo Industro for the amount
Rondo Industro had paid to purchase the thermometers from Cardona.
6 The joint venture then sent the thermometers back to Cardona and sought to
recover the purchase price from Cardona. This was easier said than done. Mr.
David Fine was in the process of emigrating. Cardona had ceased trading and
was an empty shell. If the money was to be recovered, then it would have to
be recovered from Mr. David Fine, rather than Cardona itself. Eventually, on
12 May 2022, Mr. David Swartz, Mr. David Fine’s attorney, transferred R2
million into Mr. Berger’s personal bank account, in full and final settlement of
the joint venture’s claim for the return of the purchase price of the
thermometers. Neither Mr. Glen Fine nor Calasca, it is common cause,
received anything.
7 The question in this case is whether Mr. Berger was obliged to share the R2
million Mr. David Fine paid to him with Mr. Glen Fine. Mr. Glen Fine sues on
the basis of an agreement he alleges he reached with Mr. Berger in late
October 2021. The business and personal relationship between the two men
had by that time soured. The joint venture had effectively ceased to operate

4

some months before. Immediately before the October 2021 meeting, each
man claimed the other owed them money arising from the joint venture.
8 At the October 2021 meeting, Mr. Glen Fine and Mr. Berger settled their
differences on the basis that neither owed the other any money arising from
transactions undertaken as part of the joint venture. There is a dispute,
however, about what the men agreed would be done to collect the money
Cardona still owed to the joint venture. Mr. Glen Fine says that the agreement
was that the parties would continue to co-operate to recover the amount
Cardona still owed, by pursuing Mr. David Fine for that amount. Mr. Berger
says that this was not the agreement. He says that the agreement was in fact
that each man would endeavour to collect their own portion of what was owed,
and that there was no agreement to share whatever had been collected.
9 The parties also disagree about the capacities in which the October 2021
accord was reached. Mr. Glen Fine says that all along, and in any event at
least by that time, neither he nor Mr. Berger drew any distinction between
themselves and the companies through which they operated the joint venture.
The agreement was that each man would share whatever they collected from
Cardona or Mr. David Fine with the other, whether or not the money was
collected by or on behalf of either of the companies. Mr. Berger denies this.
He says that he would never have entered into such an agreement in his
personal capacity, and that whatever agreements passed between the two
men, they could only have bound the two men’s companies – Calasca and
Rondo Industro. Mr. Berger also said that the joint venture was a creature of

5

those two companies, and that neither he nor Mr. Glen Fine were party to it in
their personal capacities.
10 It seems to me that, if this trial action is to succeed, I must settle both of these
disagreements in Mr. Glen Fine’s favour. If I were to decide that the agreement
was that any money recovered by either man would be shared, the claim
would still fail if I also concluded that the agreement to collect and share what
was owed was made by the two men acting only as representatives of the two
companies that formed part of the joint venture. This is because the company
on behalf of whom Mr. Berger would have received the money, Rondo
Industro, is not a party to these proceedings, and cannot be ordered to pay
the plaintiffs anything. If, however, I decide both that there was an agreement
to share the proceeds of whatever was collected from Mr. David Fine, and that
the agreement was reached by Mr. Glen Fine and Mr. Berger in their personal
capacities, then the claim would succeed on the basis that Mr. Berger owes
Mr. Glen Fine R1 million, and that Mr. Glen Fine is entitled to judgment for that
amount.
11 I now turn to the first of these two issues: the true nature of the October 2021
agreement.
The October 2021 agreement
12 The October 2021 agreement was reached orally at a meeting between the
two men which took place at Linksfield. It was later memorialised in an email
Mr. Glen Fine sent to Mr. Berger on 4 November 2021. That email reads –
“Hi Myron
to ensure we [are] on the same page, the discussion was

6


1.Rondo and Calasca do not [owe] each other any money
2. Calasca will collect 50% of the settlement from David Fine
3. Rondo will collect 50% of the settlement from David Fine
4. Rondo will pay Macdonalds.

Please confirm points 1 to 4

thanks.”


13 The parties agree that Mr. Berger later confirmed the contents of this email
over the telephone. Mr. Glen Fine says that the agreement is to be interpreted
as meaning that each party would share half of whatever either of them
ultimately collected from Mr. David Fine with the other. Mr. Berger adopts a
more literal approach to the email. He says that the email means more or less
what it said: each company would pursue its own half of whatever Mr. David
Fine agreed to pay in settlement of the sum owed to the joint venture.
14 It is now well-established that the words in which the parties to a contract
choose to express their accord are not to be treated as if they bear objective
and immutable meanings independent of the circumstances in which the
agreement was struck. While “the inevitable point of departure is the
language” of the agreement itself, that language must be “read in context and
having regard to the purpose of the provision and the background to the
preparation and production” of the agreement (Nation Joint Municipal Pension
Fund v Endumeni Municipality 2012 (2) SA 593 (SCA), paragraph 18). To put
it another way: “words without context mean nothing” (Novartis SA v Maphil
Trading 2016 (1) SA 518 (SCA), paragraph 28).
15 The contextual factors relevant to the interpretation of the agreement in this
case all, in my view, point to the conclusion that the meaning of the 4

7

November 2021 email was that each party would receive half of whatever
either of them collected from Mr. David Fine. The most obvious consideration
in favour of that interpretation is the fact that the agreement was to pursue a
“settlement” that neither party was able to quantify at the time it was reached.
The maximum amount Mr. David Fine owed was probably the cost of the
thermometers – about R5.6 million. But the amount for which the parties to the
joint venture would “settle” their claims had not been quantified. If the idea was
that each party would act independently of the other, that would entail the
proposition that each party would quantify the total amount for which they were
prepared to “settle” with Mr. David Fine, and then claim half of that amount.
That, of course, would make no sense, since, acting independently, each party
might “settle” in a different amount. In addition, if the parties were to settle
separately with Mr. David Fine, neither party’s agreement to “settle” could
realistically bind the other. The agreement to split a “settlement” only makes
sense if the parties accepted that they would jointly settle with Mr. David Fine,
and then share that amount equally.
16 It is, further, common cause that neither Mr. Glen Fine nor Calasca had any
way of collecting money from Mr. David Fine on their own. They had either to
do so on behalf of the joint venture or through Mr. Berger or Rondo Industro.
The contract for the delivery of the thermometers had been entered into
between Rondo Industro and Cardona. Only Rondo Industro had the standing
necessary to collect the money Cardona owed, whether on behalf of the joint
venture or otherwise. Had Mr. Glen Fine been left to his own devices, he would
have had no basis on which to demand payment from Mr. David Fine, since
Cardona’s contract was with Rondo. It is true that Rondo concluded the

8

contract pursuant to its role in the joint venture, but Mr. Glen Fine would clearly
have created an extra hurdle for himself in collecting the money from Mr. David
Fine if he agreed to do so without assistance from Rondo or Mr. Berger. Such
an agreement would plainly have made very little business sense.
17 There is, in addition, Mr. Glen Fine’s unchallenged assertion in his evidence
that he drew no distinction between the individuals and companies who were
party to the joint venture. They were, in his view, all in it together. The evidence
of Mr. Glen Fine’s conduct all accords with this approach. Shortly before the
October 2021 meeting, Mr. Glen Fine had been contacted directly by Mr.
David Fine. Mr. David Fine had asked him what he would settle for. Mr. Glen
Fine’s evidence, again unchallenged, was that he was reluctant to settle
directly with Mr. David Fine without consulting with Mr. Berger, since he drew
no distinction between the two men’s interests in the debt Mr. David Fine
owed. There is nothing in the evidence that suggests that Mr. Glen Fine’s
attitude suddenly changed in or about the late October 2021 meeting. There
is similarly no objective indication that such a change of attitude would have
done Mr. Glen Fine’s interests anything but harm.
18 Also unchallenged is Mr. Glen Fine’s version of what Mr. Berger himself
proposed at the late October 2021 meeting. In response to a question from
me, Mr. Glen Fine said that it was in fact Mr. Berger who proposed a “united
front” to collect what Mr. David Fine owed, and that whatever was collected
would be shared “50/50”. That account of the late October 2021 meeting was
never challenged. The 4 November 2021 email must be interpreted in light of
it. I find it impossible to accept that, having been made that offer at the late

9

October 2021 meeting, Mr. Glen Fine would spontaneously have decided that
the two men should go it alone. The true meaning of the 4 November 2021
email was clearly that the two men would pursue Mr. David Fine jointly for
what Mr. David Fine owed and share whatever they got.
19 Mr. Glen Fine was in every respect a consistent, impressive and honest
witness. He struck me as the more vulnerable and less weathered of the two
men. He was perhaps trusting to the point of naïve in his dealings with Mr.
Berger, but there was nothing in his evidence that suggested that his
interpretation of the 4 November 2021 email was contrived or self-serving. He
plainly genuinely believed that the email had the meaning he contended for.
20 I cannot say the same of Mr. Berger, whose attitude in the witness box did not
inspire confidence. Mr. Berger’s evidence was guarded and halting. He was
unable to explain why Mr. Glen Fine would have agreed independently to
pursue a debt that, at least on paper, he was not owed. He challenged the
authenticity of emails that his legal representatives had conceded were
authentic because, when they were put to him, they did not suit his version.
There is also the fact, patent from those emails, that Mr. Berger did not tell Mr.
Glen Fine about the amount he received from Mr. David Fine for weeks after
he received it. This was despite the fact that Mr. Glen Fine regularly asked
whether the amount had been recovered. Had Mr. Berger been telling the truth
about the nature of the agreement, it would have been a small thing to say
that he had received his share of the settlement that both men had agreed
could be independently recovered. But he did not say that. In the emails that
passed between the two men, Mr. Berger pretended not to understand what

10

Mr. Glen Fine was talking about. The probable inference from all of this is that
Mr. Berger lied to Mr. Glen Fine for some time after he received his payment
from Mr. David Fine, and that he lied to me in the witness box about the true
nature of his agreement with Mr. Glen Fine. Accordingly, I find it impossible to
rely on Mr. Berger’s evidence on the points in dispute.
21 For all these reasons, I conclude that the more probable interpretation of the
4 November 2021 email and the agreement it memorialised was that each
party would share equally anything either of them collected from Mr. David
Fine.
The parties to the agreement
22 What remains is to decide whether the agreement recorded in the 4 November
2021 email was reached between Mr. Glen Fine and Mr. Berger acting as
representatives of Calasca and Rondo Industro, or whether they intended to
bind themselves personally to share with each other whatever they collected
from Mr. David Fine.
23 The agreement to share the “settlement” referred to in the 4 November 2021
email initially struck me as an agreement between two companies. As Mr.
Silver, who appeared for Mr. Berger, pointed out, it is expressed as an
agreement between the two companies: “Calasca” and “Rondo”. However, as
I took the circumstances surrounding the email into account, that textual point
became less persuasive.
24 In the first place, Mr. Glen Fine is the author of the email. Insofar as the joint
venture was concerned, he plainly drew no distinction between himself and

11

Calasca on the one hand and Mr. Berger and Rondo on the other. Rondo had
to be named, because it was to Rondo that the money was formally owed. But
by the time of the late October 2021 meeting, Mr. Berger had long -since
resigned as a director of Rondo. I heard no evidence, other than Mr. Berger’s
say-so, that Mr. Berger’s efforts to recover the money Mr. David Fine owed
the joint venture were undertaken strictly on Rondo’s behalf. For the reasons
already given, I decline to rely solely on Mr. Berger’s word that this was so.
25 In addition, the amount eventually recovered from Mr. David Fine was not paid
to Rondo, but into Mr. Berger’s personal account. Had Mr. Berger really been
pursuing Mr. David Fine on Rondo’s behalf, he would likely have had the
money paid to Rondo. There is also the fact that the money was not paid over
by Cardona itself but by Mr. David Fine personally. This was after what Mr.
Swartz, Mr. David Fine’s attorney, called “extortion” – in that, as was never
seriously disputed, Mr. Berger sent a debt collector to warn Mr. David Fine
personally of the adverse consequences of failing to pay what Cardona owed
the joint venture. All these contextual factors point to businessmen acting
personally rather than on behalf of the entities they control. They tend strongly
toward the conclusion that Mr. Berger was collecting the money for his own
account, and that the agreement memorialised in the 4 November 2021 email
from Mr. Glen Fine was an agreement between the individuals and not the
companies they controlled.
26 To this must be added that the agreement was reached against the
background of a family conflict. The two men were part of each other’s
extended family. It was common cause at trial that Mr. Glen Fine had refused

12

to invite Mr. Berger to his wedding because of the conflicts that had arisen
from the joint venture. Mr. Berger ended up attending the wedding as a result
of the détente that the two men had reached at the late October 2021 meeting.
It is improbable that either man considered the accord to b e solely in the
interests of their two companies.
27 On top of all of this, the emails that passed between the two men leading up
to the late October 2021 meeting and the 4 November 2021 email referred
interchangeably to themselves as individuals and to their companies – with
Mr. Berger almost exclusively referring to his share of the amount due from
Mr. David Fine as a sum due to him personally rather than to Rondo.
Throughout the joint venture, the two men had referred to each other as
“partners”. They had seldom, if at all, taken care to refer to each other’s
companies as the true collaborators. This was, from start to finish, a business
affair between the two men rather than an exclusively corporate transaction.
28 For these reasons, I conclude that the agreement memorialised on 4
November 2021 was an agreement between the two men to share with each
other whatever each of them managed to collect from Mr. David Fine.
The pleadings
29 It is finally necessary to deal with the argument, advanced by Mr. Silver in his
written submissions, that the claim I have sustained was not pleaded. At
paragraph 37 of his submissions, Mr. Silver contends that it was not pleaded
that either Mr. Glen Fine or Mr. Berger were party to the joint venture or that
either of the men would be personally liable to the other in the event that the
joint venture suffered a loss.

13

30 This misses the point. In my view, the joint venture was more than an alliance
between Calasca and Rondo, but that does not matter. The critical issue is
whether the agreement to collect and share what Mr. David Fine owed the
joint venture was reached between the two companies or between the two
individuals. The conclusion I have drawn on the evidence – that it was an
agreement between the two individuals, Mr. Glen Fine and Mr. Berger, the
second plaintiff and the second defendant – is pleaded in paragraph 22 of the
plaintiffs’ particulars of claim.
31 Mr. Silver poured scorn on that paragraph as pleading two mutually
destructive factual versions – and perhaps it does. But that was an issue which
the defendants could have dealt with by way of exception. Once the
defendants went to trial on the pleadings as they stood, they must have known
that the agreement really had to be established between Mr. Berger and Mr.
Glen Fine acting in their personal capacities, because everybody knew that
Rondo Industrial, the first defendant, had been misjoined, and was never a
party to the joint venture in the first place.
32 In any event, there can be no suggestion that I have reached a conclusion that
was not pleaded, and I reject Mr. Silver’s argument to the contrary.
Order
33 For all these reasons, I give judgment as follows –
33.1 The second defendant will pay the second plaintiff the sum of R1
million plus interest at the prescribed rate to run from 14 September
2023 to the date on which the judgment is satisfied.