Konsult One CC v Strategy Partners (Pty) Ltd (2607/10) [2013] ZAWCHC 55 (19 March 2013)

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[2013] ZAWCHC 55
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Konsult One CC v Strategy Partners (Pty) Ltd (2607/10) [2013] ZAWCHC 55 (19 March 2013)

REPUBLIC OF SOUTH
AFRICA
IN THE HIGH court of
South Africa
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
REPORTABLE
CASE NO: 2607/10
In the matter between:
KONSULT
ONE CC
..........................................................................................
Applicant
and
STRATEGY
PARTNERS (PTY) LIMITED
....................................................
Respondent
JUDGMENT DELIVERED ON
19 MARCH 2013
DAVIS AJ
:
In this application the
applicant asks for a declaration that a partnership was established
between the applicant and the respondent
in relation to seven
initiatives undertaken during June 2004 to February 2007and
identified in the notice of motion as ‘the
Pioneer project,
the NWK project, the SWOV project, the Capespan project, the
NewFarmers project, the Citrifruit project and
the Agrifund
project’. The applicant describes these endeavoursas ‘the
joint venture projects’, but I prefer
to refer to them in more
neutral language as ‘the agricultural projects’, since
they involved activity within the
agricultural sector.
The applicant also seeks
orders directing the respondent to render to the applicant a
statement of account reflecting certain
details, to debate such
account with the applicant, and to pay to the applicant whatever
amount may be found to be due to the
applicant upon debatement.
Finally, the applicant
seeks leave to reset the matter down for hearing on the same papers
for the purpose of relief aimed at
determination of any disputed
issues, including the appropriate
pro rata
division of the
parties’ respective interests in the partnership insofar as it
relates to the Agrifund project, and payment
of all amounts found to
be due to the applicant.
It is common cause that
there is no direct evidence that the parties entered into a
partnership agreement. The applicant does
not rely on an express
written or oral agreement, but rather on a tacit partnership
contract which it contends should be inferred
from the conduct of,
and the written and oral communications between,
the
parties’ representatives,
1
namely,
Melt Doedès (aka
Dès) van der Spuy(‘Van der Spuy’) acting as the
sole member of the applicant,
andHermanus
Coenraad (aka Herman) Marais (‘Marais’) acting as the
managing director of the respondent.
The applicant argues
that all the
essentialia
of a partnership were present in
relation to each of the agricultural projects, and maintains that a
partnership therefore came
into being in relation thereto.Various
correspondence and other documents spanning the period June 2004 to
February 2007 (‘the
relevant period’)were annexed to the
founding affidavit and relied upon in support of the applicant’s
assertion that
a partnership existed between the parties.
Marais, who deposed to
the answering affidavit on behalf of the respondent, repeatedly
denies that there was ever any intention
to enter into a partnership
with the applicant, or that a partnership agreement was at any
stagein fact concluded between the
parties. Respondent maintains
that the applicant, in the person of Van der Spuy, was engaged by
respondent on a project by projectbasis
as one of many
ad
hoc
associates, who collaborated on projects undertaken by
respondent. Such associates rendered services for remuneration paid
in
accordance with the respondent’s general guidelines for
reward-sharing with its associates.According to the respondent the

parties worked together on the basis of an associate
relationship,both in relation to the agricultural projects and on
other
initiatives which are not referred to by the applicantand are
not included in the alleged partnership.
It is not in dispute
that, in the case of theAgrifund project, extensive discussions were
held regarding the possible formation
of a joint venture company
which would house the anticipated benefits from the Agrifund project
and in which both parties would
be shareholders. Ultimately,
however, these negotiations failed as no agreement could be reached
on the allocation of the shareholding
in the proposed company.
It is also common cause
that none of the projects, with the exception of the Agrifund
project, moved beyond an initial conceptual
phase, and that none of
them yielded any income except the NewFarmers and Agrifund projects.
In the case of the NewFarmers project,
certain fees were earned
which were of a one-off nature.The Agrifund project, however, came
to fruition and with it the prospect
of significant, on-going
financial benefits. The relief sought by the applicant is directed
in the main at the Agrifund project.
In order to succeed in
this application the applicant bears the onus of establishing that a
partnership contract was entered into
by the parties which included
the Agrifund project.
A curious feature of
this matter is that, having launched the present application on 9
February 2010, the applicant saw fit to
institute action against the
respondent and twelve other parties on 12 February 2010 under case
number 2887/10, in which it claims
damages based,
inter alia
,
on a breach of the alleged partnership contended for in this
application. This action is still pending and awaiting a trial
date.
One cannot help but wonder at what appears, on the face of it, to be
an unnecessary duplication of proceedings - and a
perilous course
given the known dispute regarding the existence of the partnership.
I was told from the bar
by Mr Nelson, who appeared for the applicant together with Mr Van
Dorste, thatbecause of the poor state
of health of Van der Spuy and
the expense attendant on a lengthy trial, it was considered
preferable to proceed on motion for
the particular relief sought in
this application. I was also told that the applicant had requested
the respondent and the other
defendants in the action to agree to a
consolidation of this application and the action. This request was,
not surprisingly,
refused.
Be all that as it may,
it is clear that the applicant made a conscious choice to proceed in
this fashion,
and
it must abide the consequences of the well- established rules
governing the granting of final relief in motion proceedings
where
the facts are disputed.
2
The
so-called Plascon-Evans rule dictates that the matter must be
decided on the basis of the facts as stated by the respondent,

together with the facts set out in the applicant’s affidavit
which are admitted,
or
cannot be reasonably denied, by the applicant.
3
The Evidence
The history and context
of the relationship between the parties appears in the main from the
answering affidavit deposed to by
Marais. The founding affidavit,
deposed to by Van der Spuy, contains details of oral and written
communications between the parties
during the relevant period. These
communications mainly consist of email correspondence, letters and
other documents pertaining
to the agricultural projects, which are
annexed to the founding affidavit. There is no dispute regarding the
authenticity of
the correspondence and documents, or that they
correctly reflect what the authorsthereof wrote. What is vigorously
disputed,
however, is the correct interpretation thereof.
I intend to deal with
the evidence in accordance with the following structure:
14.1 paragraphs 15 to
18containbackground facts which are not in dispute;
14.2. paragraphs 19 to 28
set out the respondent’s version of the nature and history of
the relationship between the parties;
14.3. paragraphs 29 to
112deal chronologically withthe various agricultural projects and the
correspondence exchanged between Van
der Spuy and Marais in regard
thereto.
Background
Van der Spuy holds the
B.Compt (Hons) and LLB degrees from the University of Stellenbosch.
After obtaining his law degree and
qualifying as a chartered
accountant, he worked for various corporations, including Somchem,
Federale Volksbeleggings and Sankorp,
where he gained experience in
the fields of financial management, strategic planning and
investment management. In 1990 he joined
Senbank, the
merchant-banking arm of Bankorp, where he started investment banking
as a new division and was responsible for strategic
and risk
investments and leveraged buy-outs. Following the take-over of
Bankorp by Volkskas and the subsequent formation of Absa
Corporate
and Merchant Bank (‘ACMB’) in 1992, Van der Spuy worked
for ACMB as part of its corporate finance team
and advised on
mergers and acquisitions, disposals and rights issues. In 1993 Van
der Spuy resigned from ACMB to form the applicant,
a consulting firm
specialising in value-based strategic management.
4
The business of the
applicant is the provision of ‘management consulting services,
focussing on business valuations, value-based
advice for top
management and the identification and funding of investment
opportunities for private equity.’
5
Marais holds the B Comm
LLB Hons degrees.
6
A
former Deloitte partner,
7
in
1996 he established a consulting firm named Strategy Partners, which
rendered management consulting services for remuneration,
principally on the basis
of professional time spent on client projects. In 2000 Marais
reoriented his business so as to become
involved in projects where
value could be created and profits earned which were not restricted
to the hours spent on a project.
In 2002 Marais expanded his firm
and converted it into the respondent company, of which he became a
shareholder and the managing
director. The goal of the respondent
was to unlock value in projects which was not limited exclusively to
time-based earnings.
8
While no indication is
given of the size of respondent when it was formed, one sees from a
letterhead of respondent as at 12 February
2007 that its directorate
at that time comprised ten directors in addition to Marais, the
Managing Director,
and
one J M Pieterse (‘Pieterse’), the Executive Chairman.
9
Respondent’s
version
During 2003 the
directors of respondent came to the realisation that one of the best
ways to achieve the goal of unlocking value
in projects, was to
bring about a private equity fund. With this in mind,
representatives of the respondent liaised extensively
with fund
managers and institutions over a period of two years in order to
research the possibility of respondent obtaining a
mandate to manage
a private equity fund.
10
It was recognised,
however, that the respondent did not have an adequate track record
in the equity fund area, and that it was
necessary to build up the
respondent’s profile in the transaction servicesfieldin order
to achieve the necessary credibility
as a prospective fund manager.
To this end the
respondent’s directors decidedto focus their involvement on
projects where transaction services could be
rendered, for instance
in relation to takeovers, mergers and acquisitions. Such services
were then rendered to a variety of institutions,
including Sanlam
Private Equity (‘SPE’), Absa, Nedbank and Rand Merchant
Bank, to name but a few.
11
On 24 January 2003 the
respondent’s directors resolved to identify individuals with
specific expertisewho would be able
to assist respondent in
implementing its aforesaid strategy by rendering
ad
hoc
serviceson
projects involving transaction services. The relationship with such
individuals would be handled on the basis of an
association.
12
The relevant resolution
was minuted as follows:
13
‘
In terms of
future SP associates, general endorsement of expanding SP through
associations was received and it was decided to activate
further.
It
was agreed that associates would be SP card-carrying persons with
whom SP would enter into formalised agreements
.
Profile-wise, associates were indicated to be persons with expertise
that would be available on short notice to become involved
in
projects; a possible category being ex-CEO’s.
It
was agreed that associates would not necessarily be shareholders
(in SP). It was stressed that the mechanism and criteria by which
potential associates would be identified needed to be
well-defined.’(Emphasis
added.)
Associates were to be
remunerated for services rendered in connection with respondent’s
projects. A draft letter of invitation
(‘the invitation
letter’) was formulated to be sent to prospective associates,
which set out the respondent’s
intentions for the
associate-relationship in the following terms:
14
‘
Against the
background of our recent discussions on areas of mutual interest,
the
directors of Strategy Partners would like to extend an invitation to
you to enter into a formal association with our firm
.
Subject to mutual agreement, we would envisage such an arrangement to
involve the following:
Co-operation in the formulation
and execution of business plans
as well as the
active joint
development of individual business opportunities
in the fields
of corporate restructuring, turnaround and direct investment;
An SP business card be made available
to you;
Our association be included in the
firm’s profile…;
Support from our office
infrastructure to be available to you, when this is required in
support of joint work.
Establishing a routine of
sufficiently frequent meetings of directors and associates …
to keep track of direction in the
business and in our association.
We are hoping that this kind of
relationship could provide a viable platform for mutually beneficial
business co-operation while
not encroaching unduly on the
independence and autonomy of the respective parties
. For purposes
of sound housekeeping and safe-guarding of respective interests, we
would suggest a discussion of arrangements towards:
Reasonable exclusivity around our
association in this field of business - naturally such an
arrangement should not interfere with
either party’s
involvement in business or associations in other areas of endeavour
;
A confidentiality undertaking;
Circulation of correspondence of
mutual interest.
As far as the sharing of rewards is
concerned, our proposal would be to follow a ‘deal-by-deal’
approach. Our philosophy
is that the parties involved in the
referral, selling and execution of assignments should all be rewarded
for their respective
contributions by mutual agreement. This would
apply to both revenue as well as capital gains. I attach for your
information the
guidelines that we currently apply in this regard.
We would like to see the kind of
relationship proposed here as a starting point for a more structured
business relationship which
could be taken to further levels of
integration when regarded opportune by both parties.
Should you favour the proposed
‘spirit’ of the association as outlined in this letter on
an in principle basis, we would
be happy to finetune a suitable
arrangement with you.’(Emphasis added.)
Annexed to the
invitation letter were certain guidelines, styled ‘Guidelines
for Distribution of Project Based Rewards’
(‘the
guidelines’),
which
were to serve as the basis for agreement between respondent and its
associates regarding remuneration for work on respondent’s

projects.
15
The guidelines set out
various alternative bases for remuneration, and concluded with the
words, ‘The above are guidelines
to be considered and applied
by the parties involved in the context of the project concerned.’
16
The basis on which
respondent involved associates in its business was not to enter into
partnership agreements with them. They
were remunerated on a project
by project basis in accordance with the guidelines. The nature of
the project, and therefore the
manner in which Respondent would be
remunerated by the client, determined the manner in which the
associate would be remunerated.
17
Over the years the
respondent formed associations with many individuals on terms such
as those set out in the invitation letter.
18
Marais met Van der Spuy
in 2001. Van der Spuy later approached Marais and offered his
services in order to become involved in
projects. From their
conversations Marais identified him as a possible associate within
the context of respondent’s stated
objectives of involving
experts in projects on an
ad
hoc
basis.Thereafter
respondent liaised with Van der Spuy in regard to projects in the
same manner and on the same basis as it dealt
with its other
associates. Van der Spuy was given a Strategy Partners business card
which proclaimed his identity as a ‘SP
Associate’
.
19
During 2004 the
Respondent’s directors saw an opportunity, based
inter
alia
on
Respondent’sexisting involvement in projects in the
agricultural sector,
20
to initiate investment
projects in the broader agricultural sector. They therefore
proceeded to identify individuals from amongst
various shareholders
and associates of respondent to form a focus group,
which would consider and
investigate opportunities which might exist for respondent in this
sphere (‘the focus group’).
Marais
asked Van der Spuy to form part or the focus group because he had an
interest in and previous exposure in the agricultural
sector.
21
It
was in the context of the focus group that the idea of an equity
fund within the agricultural sector came up for discussion.
22
During the period 2005
to 2006 the respondent engaged the applicant as an associate to
render services in regard to a number of
projects other than the
agricultural projects, in respect whereof the applicant does not
claim a partnership existed,and which
it claims are irrelevant to
this application.
23
I shall refer to these
other projects as ‘the non-agricultural projects’ to
distinguish them from the agricultural projects.
The applicant rendered
invoices to the respondent in respect of its services in relation to
the non-agricultural projectsand was
paid for these services in
accordance with the guidelines.
24
In
these invoices applicant referred to respondent as its ‘client’.
25
In
the case of the NewFarmers Project, the only agricultural project
beside the Agrifund Project which yielded any income, the
fees
generated were paid by the clients concerned, ie, NewFarmers and
SPE,
to
the respondent. Applicant invoiced respondent for the work which it
performed in respect of the NewFarmers and SPE mandates,
and was
duly paid by the respondent.
26
The basis on which the
applicant worked with the respondent on all the projects, both
agricultural and non-agricultural, was the
same, namely,
that of an associate for
remuneration in terms of the guidelines. No partnership agreement
was ever entered into between the parties.
27
The respondent at no
stage intended to conclude a partnership contract with the
applicant.
28
The Relevant Period
According to the
applicant the parties collaborated on the agricultural projects
during the following periods:
29
Projects
Periods
of collaboration
Pioneer
Foods
June
– December 2004
NWK
August
2004 – May 2005
SWOV
October
2004 – May 2005
Capespan
May
2005 – November 2006
NewFarmers
June
2005 – April 2006
Agrifund
October
2005 – February 2007
Citrifruit
August
2006 to February 2007
The Pioneer Project
During 2004, in the
course of discussions within the focus group, Van der Spuy raised
the possibility of unlocking value in Pioneer
Foods Limited
(‘Pioneer’) by means of a leveraged buy-out (‘LBO’)
in Pioneer (‘the Pioneer project’).
This was an idea
which he had previously investigated.
He
was then asked to formulate a proposal for presentation to the focus
group in this regard, which he duly did.
30
On 11 June 2004 Van der
Spuy, on behalf of the applicant, made a presentation to the
respondent’s executive committee (‘Exco’)

regarding the proposed LBO.
The
written portion of the presentation shows that Van der Spuy
contemplated that co-operation between the applicant and the
respondentwould be along the following lines:
31
‘
Samewerking
met Strategy Partners
Konsult One benodig die volgende:
Maandelikse ondersteuningsfooi om
proposisie to ondersoek
Fondse om uitgawes tov onderskoek to
dra
Kapitaal vir belegging in Newco
(
voorkeuraandele teen 70% van prima / 15% van consortium
)
Deel van fooi /
finansieringsinkomste
(
op basis van aandeelhouding
)
Strategy Partners se rol
Verkyging van mandaat
Finansiering van
Ondersteuningsfooi / koste
Hulp met evaluasie van LBO proposisie
Finansiering
Samewerkingsbasis
Bespreek te word
’
(Emphasis added.)
On 21 June 2004 Marais
had a telephone conversation with Van der Spuy in which he confirmed
that the respondent wished to co-operate
with the applicant in
regard to the Pioneer project.Marais and Van der Spuy met on the
same day to discuss the basis of co-operation.
At this meeting
Marais told Van der Spuy that the applicant had internal guidelines
regarding profit sharing in relation to projects,
and explained that
the system essentially provided for 40% of the profits to be
reserved for the applicant and the remaining
60% of the profits to
be divided amongst the participants, either by agreement or in
accordance with an
ex
post facto
peer
review system.
32
Van
der Spuy was not happy with this arrangement and immediately
informed Marais that this was not acceptable to the applicant.
No
agreement was reached on 21 June 2004 regarding thesharing of
rewards from the Pioneer project.
33
Notwithstanding their
failure to agree on a basis for reward sharing, the parties
continued to work together on the Pioneer project.
On 23 June 2004
Van der Spuy emailed Marais and asked him what their fee (‘ons
fooi’) would be for the proposed LBO.
Marais replied as
follows:
‘
Ek kom terug
op die fooie-vraag. Bottom line bly dat ons saam projek moet
struktureer met verdeling van voordele waarmee almal kan
saamleef.’
34
On 30 July 2004 the
parties made a joint presentation to two major Pioneer shareholders
regarding a proposed restructure of Pioneer
by means of an LBO.Van
der Spuy followed up on this presentation by addressing a letter,
dated 11 August 2004, to the two major
Pioneer shareholders, in
which he referred to the presentation and outlined the services
offered by the applicant and the respondent
and the fees which would
be charged in connection with the proposed LBO.
This letter, which was
written on the applicant’s letterhead, was written with the
knowledge of Marais, who approved the
contents thereof.
35
Marais
and Van der Spuy discussed the fees quoted in the letter, which were
based on the standard fees levied by respondent in
similar
projects.
36
In
the letter it was explained that both Konsult One and Strategy
Partners, defined as ‘KOSP’, had a vision for working

with top corporate management in order to create value for
shareholders. The proposed plan of action contemplated that ‘KOSP’

would a) perform a valuation of Pioneer (for R 100 000.00
plus Vat and travel costs), b) identify and evaluate Pioneer’s

strategic alternatives (for R 100 000.00 plus Vat and travel
costs), and c) identify the best alternative (for R 50 000.00

plus Vat and travel costs). The letter concluded with a request that
a mandate be given to ‘KOSP’ to perform these
services
and implement any transaction flowing therefrom at market related
tariffs.
The requested mandate
was not forthcoming, however, and in December 2004 the major
shareholders of Pioneer decided not to implement
the suggested
restructure of Pioneer.
37
No further work was done
on the Pioneer project after 11 August 2004, and no income was
derived therefrom.
38
The NWK Project
Van der Spuy had an idea
for unlocking value for shareholders in NWK Limited (“NWK”)
by raising funds against the
security of NWK’s R 400 million
worth of book debts, thereby allowing it to distribute the greater
part of its
distributable reserves to
its shareholders in the form of a special dividend.The applicant had
on a number of occasions previously
approached the management of NWK
with proposals in this regard, but had not met with success.
39
During
the period December 2003 to February 2004 a so-called ‘consortium
partnership’ consisting of the applicant and
ACMB had also made
proposals to the management of NWK along these lines, but their
proposals were ultimately rejected by the management
of NWK in March
2004.
40
As happened in the case
of the Pioneer project, Van der Spuy mentioned his ideas regarding
NWK within the focus group and was
asked to prepare a memorandum for
presentation to the respondent. This he duly did, using an
adaptation of a document which he
had used in previous presentations
regarding NWK.
41
Essentially the proposal
contemplated the acquisition of a significant number of shares in
NWK by a consortium consisting of the
applicant, the respondent and
another investor who would provide the necessary capital to buy the
shares, as neither the applicant
nor the respondent was possessed of
the necessary funds.
42
The idea was that the
consortium, as the holder of a significant block of NWK shares,
would be in a position to bring about the
contemplated
securitization of the NWK book and distribution of the special
dividend. It was envisaged that this consortium would
own 85% of the
NWK shares acquired,
and
that 15% thereof would be owned by Shareco, a company to be
established by applicant and respondent. The memorandum records
the
following regarding the proposed investment arrangement:
‘
9.2 KOSP
(defined earlier in the document as ‘a consortium consisting of
Konsult One and Strategy Partners’) will establish
a consortium
that would be willing to fund the purchase of all the NWK shares with
85%
of the shares purchased being registered in the name of the
consortium and the other 15% in name of Shareco, a company to be

established by KOSP
.
9.3 Consortium will fund Shareco’s
acquisition of the NWK shares by means of participating preference
shares at the prime
rate of interest.
9.4 Shareco will each year pay a
preference dividend to Consortium equal to the ordinary dividends
received from NWK.
…
9.7 The arrangement between the
parties with regard to Shareco will be terminated either on the date
that the capital invested by
the Consortium has been recovered, or 5
years after the acquisition of the NWK ordinary shares, whichever is
earlier.
9.8 Strategy Partners and Konsult One
will be equal partners in Sharecoand will share all other income
on an equal basis
.’ (Emphasis added.)
Various emails exchanged
between Marais and Van der Spuy show that the parties worked
together in an effort to find a sponsor
to invest in the NWK scheme.
One potential investor found by the respondent was Actis.
43
Nothing
materialised, however, and on 4 February 2005 Van der Spuy wrote the
following to Marais in an email:
‘
Ons moet asb
ons posisie tov NWK evalueer.
Actis se aandring op ’n
meerderheidsaandeelhouding skakel hulle uit wat NWK betref –
tensy hulle bereid is om ’n
vyandige aanbod te maak en met
minderhedi [
sic
]
te sit.
KBN is dalk ’n beter opsie ….
Ek verneem graag of daar dalk vordering was met hulle en wanneer ons
uitsluitsel sal
kan kry.
Tensy daar ’n duidelike
positiewe wending kom wat bogenoemde twee betref, dink ek dit is
nodig om ook met ander partye te
gesels.
Ek
weet nie of SP (Strategy Partners) in so ’n geval nog aptyt sou
hè vir so iets nie. Indien nie, sou ek graag selfander

potensiale beleggers wil nader.
’
44
(Emphasis added.)
Marais responded in an
email dated 7 February 2005, in which he wrote:
‘
Na RBN einde
verlede jaar heel geinteresseerd was om te ontmoet, kom die afsrpaak
[
sic
]
nie deur die afgelope 3 weke nie.
Ek
stel voor jy gee my tot einde volgende week hiervoor en dan kan jy
gerus voortgaan. As ons ’n SP Associaat-reeling met
jou sou
aangaan – wil jy nie in elk geval oorweeg om dit dan “in
samewerking met SP” verder to ontwikkel nie?
Ek stuur die
Associaat-raamwerk vir jou deur.
’
45
(Emphasis
added.)
It does not appear from
the record whether Van der Spuy replied to this email, and if so,
how he responded. We do know, however,
that the parties continued
their combined efforts to try to find an investor for the NWK
project, for in May 2005 the applicant
and the respondent made a
joint presentation to the Royal Bafokeng Nation in a further attempt
to find such an investor.
46
Again, the attempt was
unsuccessful.
The parties did not
ultimately manage to find a suitable investor to participate in the
NWK scheme. The contemplated consortium
was never established,
Shareco was never formed and nothing came of the concept. The NWK
project simply came to a standstill.
47
The Swartland Overberg
(“SWOV”) Project
Van der Spuy had an idea
for the merger of a number of agricultural businesses in the
Swartland and Overberg into a new company
called Swartland-Overberg
(‘SWOV’), and investment in the equity of SWOV and
Pioneer (‘the SWOV proposal’).
In January 2004,
the applicant, acting in
a consortium with ACMB called ‘ACKO’, had presented this
idea to various businesses targeted
for the merger. ACKO was not
successful, however, in obtaining a mandate to investigate and
develop the SWOVproposal.
48
Since ACMB had indicated
that it was no longer interested in pursuing the SWOV proposal, the
applicantapproached the respondent
to assist in finding a suitable
investor to invest in the scheme.On 7 October 2004 Van der Spuy sent
Marais a memorandum containing
his ideas for the creation of SWOV
and how the parties would co-operate on the project (‘the SWOV
memorandum’).
It appears from
paragraph 6 of the SWOV memorandum
49
under the heading
‘Proposal to Sponsor’ that the SWOV proposal
contemplated the formation of aninvestors’ consortium

comprising the applicant, the respondent and a ‘sponsor’
who would be prepared to fund the investment in SWOV shares
and give
15% of the shares acquired to the applicant and the respondent as a
so-called ‘carried interest’, ie, an
interest funded by
means of a loan from the principal investor or sponsor rather than a
capital contribution. Paragraph 6.3 of
the SWOV memorandum records
that:
‘
Strategy
Partners / Konsult One require a merchant/investment banking partner
that would be willing to participate in the project on a risk basis
and share in a percentage of the income to be generated by
the
project in exchange for the following:
provision of legal and structuring
advice …;
assistance with the implementation of
the scheme;
carrying the direct costs of the
scheme; and
payment of a support fee to Strategy
Partners / Konsult One
Strategy Partners / Konsult One
proposes the following arrangement:
Sponsor will, subject to a
projected after-tax IRR on investment of 15%, provide or source the
funds for investment with a 15%
carry to Strategy Partners / Konsult
One funded via preference shares at 70% of prime
;
Sponsor will provide legal and
structuring advice in respect of the proposed scheme, strategy and
procedures; and
Sponsor will carry the direct costs
of the scheme but be entitled to recover it from fees earned.’
50
Applicant and respondent
collaborated in an attempt to find a suitable sponsor to implement
the SWOV proposal. They made a joint
presentation of the SWOV
proposal to the chairman of BolandAgri (‘BOL’) on 15
December 2004, approached the chief
executive officer of Actis and
wrote to KaapAgri in regard thereto.Marais involved attorneys Jan S
De Villiers with the aim that
they would form part of the task team
which would implement the merger transaction.
Ultimately, however, the
required investment partner or sponsor was never found, the SWOV
proposal was never implemented and the
SWOV project died a natural
death without yielding any income.
The Email of 7 March
2005
On Friday 4 March 2005,
a discussion took place between Marais and Van der Spuy, the
contents whereof are not dealt with in either
of the parties’
affidavits.However, it is clear that this discussion precipitated an
email from Van der Spuy to Marais
dated 7 March 2005, regarding
‘SWOV en ander’, in which he dealt with theprojects on
which they had hitherto collaborated
and the question of
reward-sharing. The letter is instructive regarding the state of
affairs between the parties at that stage:
‘
Ek verwys na
ons gesprek van Vrydag.
Ek glo beide SP en KO het gefouteer
deur nie die samewerkingsbasis reg van die begin of vas te maak nie.
Ons het elk ons eie verwagtinge
gehad
. KO het ’n
ondersteuningsfooi gesoek en ’n kapitaalvennoot. SP het sekere
verwagtinge gehad mbt winsdeling.
Ek dink die enigste manier om goeie
trou te behou is om te aanvaar ons is 50:50 vennote in
kapitaalwins/beleggingsgeleenthede en
ook suksefooie
(na
aftrekking vir insette). …
Die betrokkenheid tot datum verskil
insoverre dit SWOV, Pioneer en NWK aangaan.
(1) SWOV
Die volgende stap wat SWOV betref is
die formalisering van ’n aanbod struktuur en die beliggaming
daarvan met syfers ten einde
waardes en potentiale opbrengste. Jan S
sal hier seker beginsel uitklaring moet gee. Meeste van die werk gaan
syfers behels en
moet deur KO gedoen word. Jan S se insette relatief
tot KO en SP sal dus min wees.
…
Wat die carry betrefis dit my gevoel
dat Jan S nie op iets meer aanspraak kan maak as hulle pro-rata
gedeelte van insette nie –
tensy hul kapitaal bydra. CN se
gedagte dat Jan S iets in die pot gooi om die ondersoek en die
bestuur van die aksie te befonds,
maak vir my sin en sal hul geregtig
maak op ’n groter winsdeel.
(2) Pioneer
Die basis waarop SP genader is was
dat SP die ondersoek befonds in ruil vir ’n winsdeel. Dit het
nie so geraliseer nie en
ons het hier ook niks vasgemaak nie.
SP se bydra tot dusver is beperk tot
die bywoning deur Frank Kilbourne van ’n vergadering met WPK en
BOL. Bloot op insette
geoordeel glo ek nie SP kan tans hier aanspraak
maak op ’n 50:50 verdeling nie. Ek aanvaar egter dat ’n
Pioneer mandaat
uitendelik kan voortvloei uit ’n SWOV
betrokkenheid.
My voorstel sou dus wees dat alle
kapitaalwins asook suksesfooie (na aftrekking van vergoeding vir
insets) hier 50:50 verdeel word
. Op hierdie stadium sal KO meer
aan insetkoste verhaal maar dit kan wissel namate SP meer betrokke
raak.
(3) NWK
Die basis waarop SP genader is was
dat SP die ondersoek befonds in ruil vir ’n winsdeel. Dit het
nie so geraliseer nie en
ons het hier ook niks vasgemaak nie.
My voorstel sou dus ook hier wees
dat alle kapitaalwinste asook suksefooie (na aftrekking van
vergoeding vir insette) hier 50:50
verdeel word
. Op hierdie
stadium sal KO meer aan insetkoste verhaal maar dit kan wissel namate
SP meer betrokke sou raak. Hierdie reeling sal
egter net geld ten
opsigte van kapitaalvennote wat deur SP na die tafel gebring word.
Wat die verkryging van
kapitaalvennote betref glo ek ons moet ’n tydsbeperking stel.
Indien SP nie binne die volgende twee
maande met Actis of KNB kan
regkom nie, sal ek graag wil voortgaan om self potensiele vennote te
vind.
(4) VBK
Hierdie een was nog nie werklik op die
tafel nie maar ek het dit wel genoem as ’n moontlikheid.
Ek
will dit graag probeer ontwikkel maar nie op risiko nie maw ek soek
’n sponsor wat bereid is om die ondersoek to befonds
(soos wat
ek met bg drie ook beoog het).
Ek beoog om na ’n akspebank
te gaan op dieselfde basis as wat ek met ACMB en NWK gedoen het. As
SP belangstel om betrokke
te raak en dit te befonds sal ek dit so
verkies maar weet ek julle kontanvloei is beperk
.
’
51
(Emphasis added.)
There is no evidence in
the record that Marais replied to Van der Spuy’s email of 7
March 2005 and responded to the proposals
contained therein. This
notwithstanding, the applicant continued to work on the agricultural
projects with the respondent.
The NewFarmers Project
Van der Spuy was aware
of SPE’s affinity for the agricultural sector and on 12 May
2005 he suggested to Marais that they
approach Pieter Kriel, the CEO
of SPE (“Kriel”),
to
see whether they could interest SPE in making investments in
agricultural businesses such as NWK, SWOV, Senwes and VBK.
52
On 17 June 2005 Van der
Spuy and Marais met with Kriel to discuss the possible involvement
of SPE in agricultural undertakings
with the specific aim of
securing SPE as afinancier for the NWK and SWOV projects.
53
Kriel
suggested that these proposals should be advanced via NewFarmers
Development Company Limited (NewFarmers), an investment
company in
which Sanlam was a major shareholder and which focussed on
agricultural investments with a black economic empowerment
(BEE)
mandate.
Marais and Van der Spuy
held various meetings with representatives of NewFarmers, as a
result whereof the directors of NewFarmers
appointed the
respondenton 28 September 2005 to investigate the restructuring of
NewFarmers. (I shall refer to this mandate as
the ‘NewFarmers
mandate’.) This work was done jointly by applicant and
respondent,
54
and resulted in the
presentation of a memorandum, ‘the Restructure Memorandum’
to the NewFarmers directoratein which
recommendations were made
forthe restructuring and recapitalisation of NewFarmers.
Following this
presentation,the NewFarmers board of directorsmandated the
respondent to proceed only with the recommendation for
the
rationalisation of NewFarmers, and not with the suggested
recapitalisation of the company. The work in this regard was

undertaken by the applicant and the respondent.
55
The
New Farmers directors were not interested in granting a wider
mandate for the recapitalisation of the company.
In the wake of these
events, a consortium of institutional shareholders, which included
SPE, was interested in acquiring a large
stake in NewFarmers.
56
SPE therefore mandated
the respondent in November 2005 to review the values of the
underlying NewFarmers investments and to formulate
an investment
proposal in regard thereto, drawing on the recommendations made in
the Restructure Memorandum.
57
(I
shall refer to this mandate as ‘the SPE mandate’.)Again,
the work done in execution of the mandate was performed
by the
applicant and the respondent.
Fees were earned in
respect of the work done on the NewFarmers SPE mandates. The record
show that the respondent rendered invoices
to NewFarmers and SPE for
professional services rendered, and that the applicantin turn
invoiced the respondent for the work
which it had done in respect of
that particular mandate.
In October and December
2005 respondent invoiced NewFarmers for fees totalling R 117 250.00
(excluding VAT and disbursements)
for ‘professional
restructuring services’.
58
The
applicant, at the same time,rendered invoices to the respondent, and
was duly paid, for fees totalling R 50 000.00
in respect
of the NewFarmers mandate.
59
Thus the applicant
received approximately 42% of the total fee of R 117 250.00.
The total fee which
respondent agreed with SPE in respect of the SPE mandate was an
amount of R 96 000.00, excluding
Vat and
disbursements).
60
Respondent
invoiced SPE for R 96 000.00 plus VAT and disbursements
61
and Marais initially
made provision for a fee of R 40 000.00 for the
applicant.
62
Van der Spuy was not
happy with this division and he and Marais then agreed on a fee of
R 48 000.00 for the applicant,
i.e., 50 % of the total fee
received by the respondent.
63
Applicant rendered an
invoice to respondent for an amount of R 56 681.00 in respect
of the SPE mandate (which comprised the
fee of R 48 000.00
and VAT and disbursements), and was duly paid the amount of
R 56 681.00.
64
It is instructive to
have regard to the contents of the last paragraph of an email which
Marais sent to Van der Spuy on 16 January
2006, in which he informed
him of the amounts which he had provisionally allocated to applicant
in respect of the NewFarmers
and SPE mandates, and went on to say
the following:
65
‘
Bostaande
is nie in graniet nie as ons verstellings moet aanbring. Verder wil
ons aan SP kant voortaan ons rekonsiliering tussen
ons klient en
subkontrakfakture verbeter.
In jou geval wil ek vra dat jy jou fakture voortaan in proforma vorm
aan my deurstuur – dit word dan hirdie kant ‘gematch’

met klientfakture en ons gee vir jou ’n verwysingsnommer wat jy
op jou finale faktuur kan aanbring en aan SP se kantoor kan
deurgee.
Hierdie
is net adminreelings vir die huidige en affekteer nie onsander
gesprek oor ons moontlike gesamentlike bedeling vorentoe
nie
.’
(Emphasis added.)
The Capespan Project
Van der Spuy had an idea
for the restructuring of Capespan. In July 2005 He proposed that the
applicant, the respondent and Gawie
Niewoudt (‘Niewoudt’),
an Orange River fruit farmer, work together on the project. As with
previous projects, the
idea was to get the shareholders of Capespan
to furnish a mandate to investigate and make recommendations, which
would potentially
result in a restructuring of the entity with a
concomitant investment opportunity. Van der Spuy proposed that the
prospective
rewards be shared between applicant, respondent and
Niewoudt in accordance with contributions made during three phases
of the
project. The contribution envisaged by the respondent was
that the project would be done under its name and that that it would

be responsible for finding the investor or ‘kapitaal/strategiese
venoot’ who would fund the investment.
66
Emails were exchanged
between Marais and Van der Spuy in July 2005 regarding the proposed
reward-sharing in respect of the Capespan
project, but no firm
agreement was reached.
67
The record shows no
further work being done on the Capespan project until June 2006,
when Van der Spuy and Marais met with a representative
of Venfin to
discuss a potential investment by Venfin in Capespan. It would
appear that nothing came of this meeting.
The record shows that
during October to November 2006 Van der Spuy corresponded with
Kennett Sinclair (‘Sinclair’)
of SPE in an attempt to
interest SPE in becoming involved in the Capespan project. On 7
November 2006 Sinclair indicated that
SPE was not interested in
doing so. This correspondence between applicant and Sinclair was not
copied to Marais.
On 8 December 2006
Marais notified Van der Spuy in an email that the respondent was
withdrawing from the Capespan project and
that the applicant should
proceed in its own name in regard thereto, without the involvement
of the respondent.
68
The Citrifruit Project
Van der Spuy had an idea
involving Citrifruit. No detail is provided in the papers regarding
the nature of the project. What does
appear is that Van der Spuy
sent an email on 3 August 2006 to Marais and to Hannes le Roux of
NewFarmers in which he proposed
that applicant, respondent and
NewFarmers work together on the project. He wrote that:
69
‘
Wat die
samewerking tussen SP, NB en KO betref stelek die volgende voor
:
1.
Elke party ontvang 15% van
aandele en/of suksesfooie wat uitdie transaksie mag voortvloei.
2. Die balans, na vergoeding van
risiko-insette, word verdeel op grond van risiko-insette.
3. Risiko-insette word gedefinieer as
(a) tyd gespandeer waarvoor ’n markverwante vergoeding nie
ontvang word nie en (b) kapitaal
uitgelê ten einde uitgawes te
befonds.’
NewFarmers was not
interested in participating in the project, and on 4 September 2006,
Van der Spuy sent a
letter, written on the applicant’s letterhead, to the CEO of
Afgri Products, in which he requested that
a mandate be furnished to
‘Strategy Partners en Konsult One’ to investigate the
proposal in regard to Citrifruit.
70
Evidently nothing came
of this request. There is no indication that any further work was
done with regard to the Citrifruit project,
and it is common cause
that no income was derived therefrom.
The Agrifund Project
The idea behind the
Agrifund project was to bring about the establishment of a dedicated
private equity fundfor investing in agriculture.
This involved the
formation of an investment vehicle equipped to make large scale
investments in the agricultural sector and
a management company,
which would manage the Agrifund in terms of a management contract in
exchange for an annual management
fee and a carried interest. I
shall refer to the contemplated Agrifund management company as
‘Manco’.What was required
to realise the Agrifund
concept was a financially strong sponsor willing to participate in
the project, and through a process
of negotiation SPE was ultimately
persuaded to fulfil this role.
Where this idea
originated and who was responsible for initiating the project was
fiercely disputed on the papers. It is neither
possible nor
necessary to resolve this dispute in motion proceedings.
It is both appropriate
and sufficient, for present purposes, to accept the contemporaneous
statement by Marais that it was a project
which came about through
collaboration between the applicant and the respondent, ‘(
D)it
is ’n projek wat in samewerking tussen ons tot stand gekom
het.’
71
As I have mentioned,
during May 2005, when the parties had had no success in finding an
investor for the SWOV and NWK projects,
Van der Spuy suggested that
they meet with Kriel, to discuss the possible involvement of SPE in
agricultural undertakings. This
meeting, held on 17 June 2005, led
to contact with NewFarmers and to the NewFarmers mandate referred to
above.
In September 2005, in
the context of discussions regarding a possible recapitalisation of
NewFarmers, Van der Spuy attempted to
interest NewFarmers in the
idea of becoming a vehicle for investing in agricultural businesses.
The attitude of NewFarmers, howe
ver,
was that it was not suitable to operate as a ‘hoёr vlak
voertuig’ for agricultural investments, as had
been proposed
in discussions.
72
On Tuesday 25 October
2005 and at Van der Spuy’s request, Marais met with Van der
Spuy in Durbanville to discuss the parties’
continued
co-operation in the context of agriculture.
At that time Van der
Spuy was busy preparing a presentation which he intended to make in
his own name to SPE and Sanlam Capital
Markets regarding
opportunities in agriculture.
73
Respondent was at that
time also working on a project in which the applicant was not
involved, ‘Die Grootene’,
which
involved a broad fund management proposal which respondent intended
presenting to Sanlam.
It appears from the
contents of an email written by Van der Spuy to Marais on 27 October
2005, in which reference is made to their
meeting on 25 October
2005, that the parties discussed the possible formation of a joint
venture in regard to projects involving
agriculture. This email,
which dealt with the subject of ‘Landbou en samewerking’,
read as follows:
74
‘
Verwys
ons gesprek van Dinsdag oor die stigting van ‘n JV
asook die voorlegging aan Pieter Kriel en SP se volgende gesprek met
Johan van der Merwe.
Ek is besig om iets voor te berei vir
SPE en Sanlam Capital Markets.
Ek wil egter versoek datons
asseblief vooraf die samewerkingsbasis tussen SP en Konsult One
vasmaak voordat ons verder gaan en julle
landbou ook betrek in die
groter mandaat by Sanlam. As agtergrond verwys ek na my epos van 7
Maart 2005.
Ek stel graag die volgende voor:
1.
Alle transaksies wat Konsult One
na SP verwys het of verwys en ook NuweBoere, word deur ’n JV
hanteer waarin SP en Konsult
One 55:45 vennote is.
2. Die JV dra ’n SP gekoppelde
naam (bv Strategy Partners Investments (“SPI”)) sodat SP
die naamblootstelling
kry en ek die gewone SP visitekaartjie kan
gebruik (na buite tree ons dus as SP op maar kontrakte sal in naam
wees van SPI).
3.
Alle besluite word in ’n
aandeelhouersooreenkoms gedek
en verg goedkeruing van beide
partye.
4. Alle daaropvolgende geleentheede
word deur SPI gekanaliseer.
5. Alle mandate is in naam van SPI.
6. Alle fooie en inskomste vloei deur
SPI.
7. Insette wat op my en jou vlak deur
Konsult One en Strategy Partners aan SPI gelewer word word verreken
teen R 1000 per uur. Ander
vlakke word onderhandel.
8. Kostes en insette waar betaling nie
gewaarborg is nie, word as risiko insette beskou en word deur SPI
verged teen drie maal die
bedrag.
9. Al SPI se winste word as dividend
of fooie uitgekeer tensy die partye anders ooreeenkom.
10. Uur insette word maandeliks
gerekonsilieer.
Ek verneem graag van jou
.’
(Emphasis added.)
Marais responded to Van
der Spuy’s proposal in an email dated 3 November 2005
75
,
in which he suggested that a ‘master JV agreement’
dealing with principles and procedures for co-operation would
go
down better with Exco than a permanent corporate structure, which
could be seen as problematic. Marais also set out his vision
for
remuneration and reward-sharing, which was based on the guidelines.
The email concluded with the words, ‘Maak bostaande
enige sin?
Kan ons bespreek.’
On 24 November 2005, Van
der Spuy informed Marais by email that he was reviewing the basis of
co-operation between the applicant
and the respondent. He requested
a copy of respondent’s standard associate agreement in order
to better evaluate Marais’s
proposed reward model and also to
formalise the basis on which the applicant had been sub-contracting
for respondent on certain
of its projects (i.e., the
non-agricultural projects).
76
On 28 November 2005,
Marais sent Van der Spuy an email to which he attached copies of the
standard invitation letter sent to associates
and the guidelines. He
acknowledged that the conversations and correspondence between
himself and Van der Spuy had revealed deficiencies
in the
guidelines,
and
he proposed that they continue negotiating in this regard. He also
pointed out that the respondent was busy reviewing its

reward-sharing structure,
and
that this might result in a satisfactory model for the parties in
due course.
77
On 24 January 2006,
Marais informed Van der Spuy in an email that the respondent’s
presentation of Die Grootene at Sanlam
had not met with success and
that they must now proceed in earnest with the Agrifund project,
‘Ons moet nou voluit gaan
vir die Agrifonds.’
78
Marais and Van der Spuy
subsequently agreed that Marais would assume responsibility for
facilitating appointments and meetings
relating to the Agrifund
project and that Van der Spuy would be responsible for the
documentation and technical aspects, and
also for investigating
potential investments which came to light during the course of the
Agrifund project.
79
It is evident from the
contents of email correspondence between Marais and Van der Spuy in
May 2006 that communication was underway
between Marais and Kriel
regarding the possible involvement of SPE in the Agrifund project,
and the preparation of a
memorandum of understanding with SPE.
80
Both Marais and Van der
Spuy considered that it was necessary at this time to formalise the
basis of co-operation between the
applicant and the respondent.
Marais wrote on 12 May 2006 that, ‘Ons moet seker mettertyd
iets dergeliks tussen ons optrek?’
81
and Van der Spuy replied
on 13 May 2006 that:
82
‘
Die MoU moet
in gedagte hou dat dit nie SP self sal wees wat as Manco optree nie
maar ’n JV tussen SP en Konsult One. Dit
is dus dringend
noodsaaklik dat ons ook ons samewerkingsbasis uitsorteer.’
On 19 May 2006 Van der
Spuy sent Marais an email which contained proposals regarding the
future basis of co-operation in respect
of the agricultural projects
other than the Agrifund project.
83
To this email was
attached a letter, written on the applicant’s letterhead and
dated 18 May 2006, which dealt specifically
with the Agrifund
project.
84
The relevant portions of
the letter of 18 May 2006 read as follows:
‘
Konsult One
(“KO”) and Strategy Partners (“SP”) together
(“KOSP”) have, in close cooperation
with Sanlam Private
Equity (“SPE”), been involved in the process of creating
a private equity fund for agriculture
(“AgriFund”).
It
has been tentatively agreed with SPE that KOSP will be entitled to a
50% shareholding in the management company of Agrifund (“Manco”)

and that KOSP will be entitled to manage Manco in terms of a
management agreement to be concluded between KOSP and Manco.
This letter serves to outline the
basis for cooperation between KO and SP as partners in KOSP
(the
“parties”).
KOSP will be formed as a private
company in which shareholding will be split 60:40 in favour of SP.
The name to be selected will
recognise the existence of a partnership between the parties and
will not favour any of the parties.
A shareholders agreement will be
drafted
to incorporate the points mentioned below and also,
inter alia, provide for joint decision making and pre-emptive rights
together
with come-along/take-along clauses.
…
KOSP will have a maximum of five
board members a
nd each party will be entitled to nominate a
board member for every 20% shareholding.
…
Kindly return a signed copy of this
letter as acknowledgement of your acceptance of this arrangement
.’
(Emphasis added.)
As regards the other
agricultural projects, Van der Spuy expressed dissatisfaction at the
manner in which these projects had hitherto
been conducted, which he
felt was prejudicial to the applicant as respondent was getting all
the exposure while applicant’s
role was not publicly
acknowledged. For this reason he proposed that, in future, the
applicant and the respondent should tackle
projects together in a
consortium where both parties would be fully recognized and where
the respective shares would differ from
project to project on the
basis of contributions made. The following comments made by Van der
Spuy are instructiveas regards
the basis on which they had hitherto
worked together on the agricultural projects(exluding the
Agrifund):
85
‘
Ek het weer
besin oor ons samewerking en maak graag die volgende opmerkings as
agtergrond:
Ek het groot respek vir jou as
professionele person en die wyse waarop ons tot dusver saamgewerk
het.
Terselfdertyd het ek weinig skakeling met en belang by die
ander deelnemers in SP asook sy assosiate en sien ek myself nie as

lid van SP nie.
Wat my betref lê die waarde wat SP vir KO
inhou dus grootliks in jou persoonlike betrokkenheid en sal ek graag
op ons verhouding
wil voortbou.
Tot dusver het ek en Konsult One
grootliks ’n agtergrondrol gespeel in van die projekte wat ek
na die tafel gebring het
deurdat dit onder Strategy Partners se vlag
gedoen is
(bv Pioneer, KaapAgri, NWK en Capespan.)
Hierdie
werkwyse benadeel egter vir Konsult One en sal ek dus verkies dat
waar ons vorentoe saamwerk die klem deurgaans sal val
op
’nkonsortium bestaande uit Strategy Partners en Konsult One
(waarvan die aandeelhouding mag verskil van projek to projek.)
Dit is die rede waarom ek voorstel dat die JV in die geval van die
Agrifonds ’n naam drawat nie vir KO benadeel nie.
…
7) In wese kom my voorstelle dus
daarop neer dat beide consortium vennote volle erkenning geniet en
dat SP bereid sal weeks om in
seker gevalle die minderheidsparty te
wees. Die reeling waar ons saamwerk en dan uiteindelik “uitgelewer”
word aan
die genade van SP se Exco is dus nie aanvaarbaar nie.
8) Ons sal dus wat elke projek betref
vooraf moet bepaal hoe insette vergoed gaan word. …
9)
Jy het genoem dat SP besig is om
sy besigheidsmodel to heroorweeg en sal ek verheug wees indien SP sy
weg oopsien vir so ’n
samewerkingbasis. Ek verneem dus graag
van jou
.’ (Emphasis added.)
On 6 June 2006 Marais
and Van der Spuy met at Old Mutual to discuss the contents of the
letter of 18 May 2006 and the email of
19 May 2006.
At
Marais’ request he and Van der Spuy evaluated the respective
contributions made by the applicant and the respondent in
respect of
the Agrifund Project as at that stage. The result of the joint
evaluation was a weighting of 56:44 in favour of the

respondent.
86
According
to Marais he initiated this evaluation exercise in terms of the
guidelines because the co-operation arrangements between
the
applicant and the respondent were under discussion and it was
therefore necessary to assess the relative contributions made
by the
parties towards the first part of the development phase of the
Agrifund Project.
87
Marais states that the
purpose of the exercise was to provide a basis for assessing the
relative contributions of the applicant
and the respondent towards
the development of the Agrifund Project. When the evaluation was
later discussed by Exco, it came
to the conclusion that Marais had
underestimated the contribution made by the respondent and other
individuals in regard to the
development of the Agrifund.
88
After discussing the
matter with Exco, Marais informed Van der Spuy on 10 June 2006 that
there would have to be further discussions
regarding the division of
the shareholding in Manco.
89
On 12 July 2006, Marais
wrote an email to Van der Spuy in which he stated,
inter
alia
,
that:
90
‘
Gedink ons
moet ‘stock vat’ oor waar ons staan met Agri1 en
aksieplanne vorentoe. Hoe lyk jy Maandagmiddag 17/7 of Dinsdag
18/7?
Wat die SP/KO samewerkingsmodel
betref is daar gemaklikheid by SP oor al die beginselpunte. Wat
toepassing op Agri1 betref is daar
punte om deur te praat oor die
verspreiding van aandeelhouding in Manco se carried interest. Sal ons
hanteer saam met bg gesprek
?’ (Emphasis added.)
Van der Spuy and Marais met on 18
July 2006 to discuss the matter of how profits derived from Manco
would be divided between the
applicant and the respondent, but no
agreement could be reached in this regard.
91
Van der Spuy’s point of
departure was that the applicant should have 40% of the shares in
the joint venture company which
the applicant and respondent
intended to form to hold shares in Manco (‘the envisaged JV
Company’), whereas the respondent
was only prepared to offer
applicant 10 % - 15% of the shares in the envisaged JV Company.
92
Further emails were
exchanged between Marais and Van der Spuy between 19 and 31 July
2006, from which their differing perspectives
and negotiating
positions are apparent. The contents of the following two paragraphs
in a letter written by Van der Spuy on the
applicant’s
letterhead, dated 20 July 2006, are revealing:
93
‘
2) Wat SP
se “rustigheid’ oor die transaksie betref,
het
ek reeds lank gelede aangedui dat SP se benadering mbt bestuur na die
transaksie nie aanvaarbaar is nie en dat ek voortgaan
op die
verstandhouding datons met ’n JV eindig waar die enisgte groot
veranderlike die uiteindelike aandeelhouding is. Jy
was bewus hiervan
en ek het ’n paar keer versoek datons ons vehouding
formaliseer. Ek glo nie ander SP lede kan nou op so
’n laat
stadium verwag dat ’n ander reeling in plek geplaas word nie.
Ekself beskou KO nie as ’n
“gemiddelde SP aandeelhouer” nie maar as vennoot in ’n
besigheid waarvan die
uiteindelike sukses vir my net so belangrik is
as vir SP. Ek het aanvaar ons verhouding het sy beslag in ’n
60:40 vennootskap
gevind. SP se jongste voorstel sal beteken dat KO
afgeskaal word van ’n 40% vennoot tot ’n indiwidu wat
dalk 10%
kan kry – afhangende doe onbekende toekomstige
derdepartye eendag daaroor sal voel.’(Emphasis added.)
Marais acknowledged
receipt of the letter of 20 July 2006 on the same day, and indicated
that he would have to study the contents
before discussing it
further.
94
On
31 July 2006 Marais and Van der Spuy met to discuss,
inter
alia,
the
question of sharing the anticipated profits in the Agrifund project
and preparation of a memorandum of understanding between
the
applicant and the respondent and the envisaged JV Company. It is
apparent from an email sent by Van der Spuy to Marais on
3 August
2006, which served as a minute of this meeting, that the parties
intended to enter into a written shareholders’
agreement in
regard to their relationship within the envisaged JV Company:
95
‘
16. MOU
tussen KO en SP en JV – Ons moet op naam besluit
en
aandeelhouersooreenkoms teken
.
Ek
sal konsepooreenkoms deurgee vir jou kommentaar
.’
(Emphasis added.)
The negotiations
conducted by respondent, in the person of Marais, with SPE
progressed well,
and
on 11 September 2006 a memorandum of understanding was signed by SPE
and Marais, ostensibly on behalf of the respondent (‘the
SPE
MOU’). The salient parts of the SPE MOU read as follows:
96
‘
1.
Background:
SPE, and SP are in advanced
discussions about the establishment of a new Agribusiness Investment
Fund…
The provisional name of the new fund
is “AgriOne”/”Agri1”.
The establishment of AgriOne is to
co-incide with the restructuring of NewFarmers Development Co. SP is
the designated manager
(meaning that it will have the day-to-day
responsibility) of Manco, the management company which is envisaged
to manage the new
fund.
SPE (25%), SP(50%) and a BEE partner
are the prospective shareholders in Manco. SPE is prepared to take
up a lesser shareholding
provided SPE remains entitled to 25% of
gross management fees and 25% of the carried interest received by
Manco.
2. SPE confirms its commitment to
contribute 25% of the capital of AgriOne, …, subject to a
successful raising of the balance
of the funds from other parties. …
3. SP will, on the basis of SPE’s
capital commitment and with the active support of SPE, undertake a
fundraising process with
the objective of procuring the balance of
the capital required. …’
On 12 September 2006 Van
der Spuy asked Marais for written confirmation that he signed the
SPE MOU ‘namens JV’.
97
On 25 September 2006
Marais wrote to the applicant on a Strategy Partners letterhead
enclosing a copy of the SPE MOU and confirming
that the SPE MOU had
been signed on behalf of a joint undertaking between the applicant
and the respondent. He wrote as follows
in this regard:
98
‘
Ek bevestig
ook hiermee dat ek die betrokke Memorandum met Sanlam Private
Kapitaal mede-onderteken het
namens
die gesamentlike onderneming tussen Strategy Partners (Edms) Bpk en
Konsult One BK met betrekking waartoe ’n verdere
Memorandum van
Verstandhouding tans tussen ons gefinaliseer word
.’
(Emphasis added.)
Marais says that he sent
this letter in an effort to placate Van der Spuy who was anxious
because the parties had not yet reached
consensus regarding the
basis of their co-operation.
99
He states that:
100
‘
Ek was
deurlopend van mening dat Van der Spuy ’n waardevolle rol
soukon speel wat betreff die Agrifonds en wou ek hom dus
gerusstel
met woormelde skrywe.
Die
doel was nie om daarmee ’n einde to bring aan die
onderhandelinge tussen die partye nie aangesien die grondslag vir
samewerking
nog ooreengekom moes word soos dan ook aangedui in
voormelde skrywe
.’
(Emphasis
added.)
Work on the Agrifund
Project continued apace, with both Marais and Van der Spuy actively
involved in the matter. Negotiations
also continued with regard to
the basis of co-operation between the applicant and the respondent.
On 2 October 2006, Marais sent
Van der Spuy a draft memorandum of
understanding between applicant and respondent regarding the
establishment and management
of AgriOne.
101
The
following paragraphs in this document are relevant:
102
‘
Background
…
1.2 SP and KO have developed an
opportunity to lead the management of an agri-investment fund
(“AgriOne”) to a stage
where a MoU has been signed with
Sanlam Private Equity (“SPE”), the sponsoring investor,
in this regard.
In terms of this MoU, SP and KO will together hold
50% of the shares in the management company of AgriOne.
1.3 SP and KO now wish to record their
mutual understanding of how their cooperation in the specific context
of AgriOne will take
place.
This Memorandum will be superseded by
Heads of Agreement and / or a shareholders agreement giving legal
effect to the parties’
intentions.
Creation of AgriOne Management Holding
Company (Pty) Ltd (“Manholdco”)
2.1
The parties will create
Manholdco for the purpose of housing SP and KO’s joint
shareholding in the management company of AgriOne
(“AgriOne
Manco”).
2.2 The parties’ respective
shareholding in Manholdco will be as follows:
2.2.1 SPX%
2.2.2 KO Y%
…
3.3 SP and KO will share in the net
operating profits of Manco according to their respective
shareholdings in Manholdco.
3.4 Carried interest accruing to
Manholdco as shareholder in Manco, after allocation of Manco
Management and directors’ share
in the carried interest, which
is anticipated to be 50 – 60%, will accrue to SP and KO in
accordance with their relative
shareholdings in Manholdco.
Representatives of KO and SP are entitled to share in the management
and directors’ share of
the carried interest to the extent that
they fulfil related roles over and above their roles as shareholders
in Manholdco.’
On Tuesday 3 October
2006, Marais and Van der Spuy met at Cape Town airport and the
question of the parties’ prospective
shareholding in the
envisaged JV company was discussed. Marais informed Van der Spuy
that an allocation of a 40% shareholding
to the applicant was not
acceptable to the respondent and that he would try and secure the
approval of the respondent for a 25%
shareholding for applicant.
103
On 5 October 2005 Van
der Spuy fired off anangry email in which he rejected the idea of a
25% shareholding and set out his views
in no uncertain terms:
104
‘
Die hele
landoudryf kom van Konsult One af.
Dit is ’n Konsult One voorstel
waarop SP ingekom het. (Ek het julle te goeder trou steeds betrek
ondanks die feit dat SP tot
op daardie stadium niks kon bydra op
enige van die landboutransaksies – NWK, Pioneer, KaapAgri –
nie).
SP was goed bewus van my
uitgangspunt.
SP het welander sienings gehad.
EK het verskeie versoeke gerig
datons dit uitklaar. SP het doelbewus die issue vermy.
Ek kan geen ander afleiding maak as
dat SP himself doelbewus so probeer posisioneer het ten einde sy eie
posisie te probeer versterk
nie.
By gebrek aan ’n ooreenkoms
is die enigste logiese uiteinde ’n 50:50 verhouding tussen KO
en SP.
As dit nie SP pas nie, moet SP onttrek
en aan Konsult One die geleentheid gee om aan te gaan met die
projek.’
Ek wil graag aanvaar dat SP se
“versoek” en hantering van hierdie samewerkingsbasis ’n
“fout” is en
nie verteenwoordigend is van SP se
besigheidsbenadering nie.
Dit laat egter ’nongemaklikheid
by my
en verkies ek om my aanbod om vir Johann te help met SP
Capital terug te trek
. Ek sal hom afsonderlik so inlig.
Ek wil
ook versoek dat Johann geen verdere rol speel tov van Capespan nie
.
(Emphasis added.)
Marais responded in an
email dated 5 October 2006 in which he stated that:
105
‘
Ek voel ek
moet darem net op record stel dat in my laaste tentatiewe voorstel
aan jou ek ’n verdelingsmodel voorgehou het
waardeur jy baie
naby indien nie verder as jou 40% verwagting van effektiewe aandeel
in die carry sou kom.’
Van der Spuy’s
reply to this email, dated 6 October 2006, shows that, from Van der
Spuy’s perspective, there was more
at stake for him in the
percentage shareholding in Manco than mere reward-sharing: he was
also concerned about issues of control:
106
‘
Dit gaan nie
net oor verdeling nie maar ook oor beheer en bestuur en die vermo
ё
om ander in
te trek. Net so graag soos julle SP wil bou wil ek ook KO bou. Die
40% belang in die JV gee KO ook die geleentheid om
te omskep in ’n
maatskappy waarin ek ’n belang aan ’n bemagtigingsgroep
(kan) afstaan en ander ouens betrek.
Dit
bied ook die geleentheid om binne JV te verwater en steeds ’n
wesenlike belang te behou.
Ek ket die aktiewe uitbou van KO
agterwee gelaat omdat daar op ’n stadium sprake was van ’n
nouer betrokkenheid by SP.
Dit het nie so uitgewerk nie en is ek
besig om KO te omvorm in ’n firma met ’n baie groter
basis
. As julle virmy
destyds gesê het dat ek met 25% moet eindig sou ek julle toe
reeds versoek het om te onttrek sodat ek my
eie span kan vorm.
Ek glo werklik SP het die kat aan die
stert beet. Dit gaan nie hier oor SP vs ’n individu nie. Dit
gaan oor twee firmas waarin
SP, by gebrek aan ’n ander besluit,
slegs op 50% geregtig is. Ek het egter reeds te kenne gegee dat julle
60% kan neem.
Ek is bereid om te aanvaar dat jy
dalk nie jou vennote behoorlik ingelig het nie en dalk by hulle valse
verwagtinge gewek het maar
dit is ’n interne SP aangeleentheid
en julle kan nie verwag datek die gelag moet betaal nie.
Ek wil dus weer versoek dat one
hierdie aangeleentheid in die bed sit der te bly by 60:40 en dat jy
en ek gaan sit en die bestuur
van Manco en JY in detail gaan
uitwerk
.’ (Emphasis added.)
On Friday 13 October
2006 Van der Spuy attended a meeting with Marais and Pieterse at the
offices of the respondent. At this meeting
Van der Spuy repeated his
threat that respondent would either have to accept a joint venture
on a 50:50 basis or else withdraw
from the Agrifund project.
107
Neither
of the parties dealt fully in their affidavits with what was said at
this meeting, and the contents of the discussion
therefore have to
be gleaned from the correspondence which makes oblique reference
thereto. On 13 October 2006 Marais wrote an
email to Van der Spuy in
which he said the following:
108
‘
Des –
dankie dat jy vanoggend ingekom het vir ’n moeilike gesprek. Ek
hoop datons’n uitweg kan vind. Ek sal soos
bespreek oor die
naweek begin met deurwerk van illustrasie van toepassing van SP
vergoedingsmodel.
Ek
wil ook teen middle van volgende week ’n brief met JP probeer
uitklaar om formeel reelings aan jou voor te stel wat ’n
basis
vir sekerheid kan bied
.’
(Emphasis added.)
Van der Spuy responded
in an email dated 14 October 2006 in which he requested Marais not
to proceed with the preparation of this
letter as he, Van der Spuy,
wished to first formulate and present another proposal to the
respondent in the light of their discussion
on 13 October 2006. He
stated that:
‘
Ek is nie
bereid om die JV op te gee nie maar sal ’n laer aandeelhouding
oorweeg, onderhewig aan sekere voorwaardes. Ek sal
volgende week vir
jou ’n konsep deurgee.’
109
In the interim, work on
the Agrifund project continued despite the unresolved question
relating to the allocation of shares in
the envisaged JV Company.
Van der Spuy was copied in on all correspondence pertaining to the
Agrifund and continued to be actively
involved in the work on the
project.
On 11 November 2006 Van
der Spuy put forward the proposal which he undertaken on 14 October
2006 to make.
He
sent Marais an email, to which was attached a detailed chronology of
the interaction between the parties, in which he commenced
with the
following recordal of his interpretation of events, and concluded
with a proposal aimed at ‘sav(ing) the situation’:
110
‘
My
interpretasie van die gebeure tot op datum is die volgende
:
Die aksie wat aanleiding gegee het
tot sowel die Nuweboere herstrukturering as die landboufonds is deur
Konsult One geinisieer.
SP het besluit om op ’n
venootskapsbasis saam met KO te werk, wel wetende wat KO se
voorwaardes vir samewerking was
.
Die Agrifonds is ’n KO projek
en SP het die risiko geloop dat die uiteindelike wins- en
aandeleverdeling dalk nie vir SP
mag pas nie.
Die versuim om betyds tot ’n
aanvaarbare vergelyking te kom, kan nie voor KO se deur gelê
word nie
.
SP se optrede en korrespondensie
bevestig die bestaan van ’n JV tussen KO
.
(sic)
By gebrek aan enige ooreengekome
samewerkingsbasis is die enigste logiese reeling ’n 50:50 JV
.
(Emphasis added.)
…
Ten einde die situasie te beredder,
stelek die volgende voor (weereens sonder benadeling van regte):
KO en SP vorm ’n JV wat die
naam van geen of beide partye reflekteer …
Winste word 65:35 verdeel ten gunste
van SP … en indien JV ’n afsonderlike maatskappy is,
sal die aandeelhouding
65: 35 ten gunste van SP wees.
Gesamentlike besluitneming plus alle
normale voorwaardes van toepassing op JV’s sal geld.
…
Indien ’n formele skriftelike
ooreenkoms nie voor 31 Desember 2006 deur beide partye onderteken
word nie, sal ’n JV
met ’n 50:50 verdeling veronderstel
word.’
On 17 November 2006, Van
der Spuy met with Marais, who told him that no agreement would be
reached between the parties unless
this was done in accordance with
the respondent’s framework for reward-sharing. As this was not
acceptable to Van der Spuy,
the meeting terminated without the issue
being resolved.
111
On 30 November 2006
Marais responded to Van der Spuy’s proposal contained in his
letter dated 11 November 2006. The response
consisted of a covering
email dated 30 November 2006
112
,
to which was attached a letter dated 27 November 2006.
113
The relevant parts of
the letter read as follows:
‘
Ter verdere
inleiding wil ek graag herhaal dat ek skryf in ’n konteks van
wesenlike waardering deur myself en SP vir die
waardevolle
bydraes was jy as sakegenoot maak
in die algemeen en specifiek met betrekking tot die Agrifonds.
Wat betref jou interpretasie van die
historiese verloop van gebeure betref
(sic)
, is ons
kommentaar as volg:
Jou toetrede tot die SP groep het
ongetwyfeld bygedra tot die momentum en focus van ons bedrywighede
in die agri-sektor. Ek
moet jou egter daarop wys dat,
voor
jou toetrede, SP reed ’n ver pad gestap het in die
agri-sektor, bv: …
SP het verhoudinge gebou met
instansies soos Sanlam Private Equity (SPE) en NuweBoere
onafhanklik en voor jou toetrede tot die
SP groep. SPE het ook
reeds planne rondom ’n agrifonds gehad selfs voor enigeen van
ons dit teenoor hul geooper het.
Ek kan dus nie saamstem met jou
stelling dat die Agrifonds “’n KonsultOne projek”
is nie – dit is ’n
projek wat in samewerking tussen ons
tot stand gekom het
. Deur die consensus wat ons bereik het op 6
Junie 2006 rondom die 60-40 beoordeling van ‘stigtings’-bydraes
tot
op daardie stadium, het ons saamgestem dat, op balans, SP die
meerdere bydrae gemaak het om die fonds te kry tot op die huidige

voor-oprigtingstand.
Ek kan nie saamstem dat SP of ek
self versuim het om met jou tot ’n vergelyking te probeer kom
oor ons samewerkingsbasis
nie. Soos uit jou kronologie van gebeure
blyk, het SP jou reeds in die eerste helfte van 2005 ingelig oor
ons beleidsraamwerk
wat betref die deel van kapitaalwinste wanneer
daar nie risikokapitaal deur die bevoordeeldes bele word nie. Die
kronologie
wys ook ’n aantal interaksies tussen onsuit waar
ons onderhandel het oor mootlike reelings met betrekking tot die
Agrifonds.
Dat ons nog nie tot ’n vergelyk kon kom nie, is ’n
onderhandelingsfeit.
Ek erken my en SP se intensie om
met jou in ’n sakevenootskap te gaan rondom die Agrifonds en
ander projekte
. Dit is ook hoe ek ons samewerking tot datum
ervaar het.
SP het nooit egter laat blyk dat die firma
inskliklik is tot ’n gelyke aandeelhouersbelang met jou /
Konsult One nie
.
Nadat ek by ons 6 June 2006 vergadering die
indruk mag laat onstaan het dat ’n 60-40 verdeling van
aandeelhouding vir
SP aanvaarbaar mag wees, het ek na raadpleging
met die SP exco reeds op 10 Junie laat blyk dat daar weer hieroor
gepraat moet
word.
SP se beginselstandpunt mbt die
verdeling van kapitaalwinste waar daar nie risikokapitaal deur die
bevoordeeldes bele word nie,
bly in oorstemming met die aangehegte
uiteensetting wat reeds by meer as een geleentheid met jou gedeel
is. …
Teen bostande agtergrond is SP se
voorstel in ooreenstemming met die tweede aanhangsel tot hierdie
brief.
Dit sal aan KO ’n juridiese aandeel in ons
gesamentlike maatskappy besorg en ’n effektiewe ekonomiese
belang van 15%
op stigting van die fonds
. …. Uit die aard
van die saak en ons onderlinge bestuurstyl,
stel ons voor dat die
aandeelhouersooreenkoms van ons gesamentlike maatskappy voorsiening
maak vir behoorlike minoriteitsbeskerming
.
Ek en die SP bestuur en direksie
hoop dat bostaande ’n werkbare basis kan bied om ons
gewaardeerde samewerking voort te sit
.’ (Emphasis added.)
On 30 November 2006 Van
der Spuy responded with an email in which he informed Marais that
the offer of a share of 15 % was not
acceptable to the applicant.
114
On 1 December 2006
Marais sent a draft AgriOne Information Document to SPE for comment.
In this document he recorded that the
shares in AgriOne Manco would
be held by SPE (25%), a BEE Consortium (25%) and Newco (50%). It was
recorded further that the
respondent would be the ‘principal
shareholder’ in Newco, and that the applicant would also be a
shareholder in Newco.
115
In
this regard it was stated that, ‘(t)hrough the Newco
structure,
Strategy Partners has
joined hands with additional entities and individuals with specialist
expertise relevant to the task of managing
AgriOne.’
116
During December 2006
further email correspondence was exchanged between Marais and Van
der Spuy which served only to entrench
their different negotiating
positions. Van der Spuy was adamant that, unless the parties could
reach agreement otherwise before
31 December 2006, the position
would be that there would be a 50:50 JV between the applicant and
the respondent in respect of
the Agrifund. Marais was equally
adamant that there was no agreement that there would be a 50:50 JV
between the parties.
117
The respondent’s
attitude was succinctly conveyed in an email from Marais to Van der
Spuy dated 8 December 2006, wherein
the following was stated:
118
‘
SP het
die situasie oorweeg en bly tans by die volgende posisie:
Die stigting van ’n
gesamentlike maatskappy waarin SP en KO se belange in die AgriOne
bestuursmaatskappy gehuisves word.
Dat
KO se juridiese aandeelhouding
in die gesamentlike maatskappy 15% sal wees en SP s’n 85%.
Dat jy in ’n posisie geplaas
word om ’n bestuursrol in die beoogde bestuursmaatskappy op te
neem …
Dat daar ’n
aandeelhouersooreenkoms
tussen SP en KO aangegaan word wat
voorsiening maak vir behoorlik deelnemende besluitneming en ’n
meganisme vir dispuutresolusie,
maar
met behoud van finale beheer
by SP
.’ (Emphasis added.)
On 7 January 2007, Van
der Spuy wrote to Marais and suggested that, regardless of the final
shareholder structure - which remained
unresolved - they should meet
urgently to discuss the composition of the management team who would
manage the Agrifund.
119
Marais responded in an
email dated 15 January 2007 that they should rather wait until SPE
had made the final decision on whether
or not the Agrifund was going
to come into existence at all.
120
On 15 January 2007
Marais sent SPE the final AgriOne Information Document in which he
recorded, once again, that the principal
shareholder in Newco (the
50% shareholder in Manco) was the respondent, and that the ‘second
designated shareholder in
Newco is Konsult One CC’.
121
In
the answering affidavit Marais states that applicant was included in
this document as ‘the second designated shareholder’
as
it had always been foreseen that the applicant would be a
shareholder and there was still the hope that agreement would be

reached in this regard.
122
On 26 January 2007
Sanlam’s Investment Committee approved an investment of R 300
million in the AgriOne Fund, to be
managed by Manco.
123
On 1 February 2007 Van
der Spuy sent Marais an email in which he reiterated his stance that
the respondent negotiated the Agrifund
deal with SPE on behalf of a
JV between applicant and respondent, and that in the absence of
agreement on shareholding in the
JV the shareholding was 50:50 with
equal control. He indicated, however, that applicant was prepared to
accept a shareholding
of 33% in the JV, subject to equal control in
regard to strategic and operational decisions.
124
Marais responded to this
email on 2 February 2007 and rejected Van der Spuy’s proposal,
stating that the respondent stood
by the offer made to applicant in
its letter of 27 November 2006, and requesting the applicant to
reconsider this offer. He concluded
with the statement that, ‘Dit
is noodsaaklik datons nou hierdie saak afhandel sodat die fonds se
operasionalisering op
gefokusde wyse kan voortbeweeg.’
125
Marais summed up the
situation as follows in an email dated 5 February 2007:
126
‘
Ek dink ons
mis mekaar op ’n fundamentele punt nl of daar ’n
gesamentlike onderneming in plek is waar die aandeelhouding
50-50 is
by gebrek aan ’n alternatiewe ooreenkoms. Dit is duidelik jou
standpunt, maar SP se siening is dat daar onderhandel
word oor die
relatiewe aandeelhouding in Newco en dat daar nog nie ooreenkoms
hieroor bereik is nie.’
On 7 February 2007 Van
der Spuy met with Kriel and handed him a letter, dated 7 February,
in which he documented the dispute between
the applicant and the
respondent over shareholding in Newco. At this meeting Kriel told
Van der Spuy that he had not been aware
that a joint venture existed
between Konsult One and Strategy Partners.
127
On
8 February 2007 a meeting was held at SPE’s offices, which was
attended by Kriel, Marais and Van der Spuy. Kriel asked
who SPE had
been negotiating with in regard to AgriOne and Marais confirmed that
it was Strategy Partners and Konsult One.
128
On 12 February 2007
Marais addressed a letter to the applicant on a Strategy Partners
letterhead in which he responded to the
points raised by Van der
Spuy in his letter to Kriel dated 7 February 2007, and concluded
with the statement that the respondent
could no longer continue the
protracted negotiations with applicant and was withdrawing from the
understanding between them.
The relevant portions of the letter read
as follows:
129
‘
1.
Om
voor te gee dat SP en Konsult One (KO) in ’n gesamentlike
onderneming is, kom ons voor as te sterk gestel
.
Wat SP betref, was daar oor ’n tydperk van twee jaar waardeerde
samewerking om projekte te ontwikkel.
Wanneer
sulke projekte gerealiseer het, is dit uitgevoer met SP as prinsipaal
en KO as subkontrakteur. One het by geleenthede gesprekke
gevoer oor
die stigting van ’n gesamentlike onderneming en daar was ’n
konsep Memorandum van Verstandhouding onder
bespreking, maar nooit
gefinaliseer of in ’n ooreenkoms gefinaliseer nie.
2. Die bostaande posisie is ook op die
AgriOne inisiatief van toepassing.
Daar was ’n
verstandhouding met betrekking tot voorgenome gesamentlike deelname
in die implementering van die fonds en dat
onderhandel sal word oor
die strukturering hiervan. Hierdie verstandhouding het ingesluit die
oprigting van ’n gesamentlike
struktuur waarbinne ons belange
in die Agrione Manco gehuisves sou word (Newco).Ten spyte van aktiewe
onderhandelings sedert mid
2006 kon ons ongelukkig nie eenstemigheid
bereik oor sekere fundamentele sake nie
. Hierdie sake het
ingesluit:
KO se aandrang op ’n vetoreg of
konsensuele bestuur … teenoor SP se voorkeur vir finale
besluitnemingsmagte…
KO se aandrang op 40% juridiese
aandeelhouding (later 33%) in Newco teenoor Sp se aanbod van 10%
(later 15%) teen die agtergrond
dat geen ander individu betrokke die
vooruitsig van aandeelhouding van hierdie ordegroootte sou he nie;
KO se voorkeur vir die
insentivisering van fondsbestuursinsette dmv deelname in die
“carried interest” op grond van
’n formule wat
deelnamevlakke voor gelewerde prestasie sou bepaal teenoor SP se
voorkeur vir ’n formule wat sodanige
deelname onderhewig sou
maak aan prestasie deur bestuurslede oor die lewensduur van die
fonds.
3. Die punt dat die
gebrek aan
suksesvolle finale onderhandelinge tussen jouself en SP
’n
belemmernis plaas op KO om addisionele aanstellings te maak, is nie
vir ons duidelik nie. Geen van die partye betrokke
in hierdie sake
het al in KO se pad gestaan on sulke stappe te neem nie.
…
SP en ek persoonlik het al by verskeie
geleenthede ons waardering uitgespreek vir die waardevolle
samewerking wat ons ’n periode
van bykns twee jaar met jou kon
beleef. Daarom is ons des te meer spyt dat hierdie situasie nou
ontwikkel het.
Soos jy weet het die Agrifonds-inisiatief egter nou
’n werklikheid geword en is dit gebiedend noodsaaklik dat daar
nou op
’n gefokusde basis voortgegaan word met die suksesvolle
sluiting en operasionalisering van die fonds. So ’n gefokusde

benadering kan net op basis van ooreenstemming oor fundamentele
vertrekpunte en onderlinge vertroue realiser.
Teen bostaande agtergrond is dit
vir SP nie langer moontlik om die sesmaandelange onderhandelings met
jou verder to voer nie en
tree ons terug uit die bogenoemde
verstandhoudings met jou.
Ons staak nou verdere korrepondensie
oor die saak. Ons sal besin oor ’n billike aanbod aan jou ter
erkenning van bydraes
tot op datum gelewer tot die stigting van
AgriOne en met voorbehoud dat die fonds inderdaad suksesvol gestig
word.’ (Emphasis
added.)
On 15 February 2007 Van
der Spuy replied to this letter in the following terms:
‘
Wat my
aanbetref was daar ’n gesamentlike onderneming tussen Konsult
One en Strategy Partners en jou skrywe kom neer op ’n
verdere
repudiering. Konsult One aanvaar hierdie repudiering en gevolglik is
die kontraktuele verhouding tussen Konsult One en
Strategy Partners
nou gekanselleer. Ek doen voorgaande met volle voorbehoud van Konsult
One se regte.
…
Dit is jammer dat ons gesamentlike
droom so moes eindig.’
The Relevant Legal
Principles
The legal principles
which have bearing on this case are those pertaining to partnership
agreements and the proof of tacit contracts.
The Courts have
consistently accepted Pothier’s formulation of the essential
elements of a partnership as a correct statement
of our law.
130
The three
essentialia
of a
partnership agreement are:
131
114.1 first, that each of
the parties brings, or binds himself to bring, something into the
partnership, whether it be money, labour
or skill;
114.2 second, that the
business should be carried on for the joint benefit of the parties;
and
114.3 third, that the
object should be to make a profit.
132
Where these three
essentials are found to be present in an agreement, the Court will
find a partnership established ‘unless
such a conclusion is
negatived by a contrary intention disclosed on a correct
construction of the agreement between the parties.’
133
Thus, the presence of
the three
essentialia
of
partnership in an agreement serves as
prima
facie
proof
of an intention to create a partnership.
134
The mere presence of the
essentialia
of a
partnership in an agreement is not, however, sufficient to establish
a partnership if the parties did not in fact intend
to create a
partnership; there must be a clear intention to establish a
partnership.
135
In
De
Villiers v Smith
136
Watermeyer dealt as
follows with an argument that because a document contained all the
elements of a partnership agreement, it
must be construed as a
partnership agreement:
137
‘
(E)ven if
(the document) contains all the essentials of a partnership agreement
as laid down in
Joubert
v Tarry & Co
it does not follow that the Court is bound to construe it as a
partnership agreement. It was pointed out by Wessels, J.P., in the

case of
Blumberg
& Sulski v Brown & Freitas
(1922, T.P.D. 130)
that the Court was not bound to draw such a
conclusion. He said at p. 136: “If the case (Joubert v Tarry &
Co) had laid
it down as a rule of law that whenever these four
essentials are found in a contract it must be a partnership contract
and nothing
else, then no doubt there would be a great deal in this
contention. The case, however, lays down no such proposition. …
The
Court came to the conclusion that it was in fact a partnership not
only because it contained all the elements of a
prima
facie
partnership,
but because the parties intended a partnership
…. If the four essentials of a partnership are found in a
contract then
prima
facie
a
partnership exists, but
other
facts may show that in fact no partnership was intended and no
partnership exists
.”
’ (Emphasis added.)
The requirement that the
object should be to make a profit requires particular attention in
this case.This entails that the making
of a profit should be the
immediate
aim
of
the parties to the agreement.
138
In
Poppe,
Russouw & Co v Kitching,
139
the Court found that a
partnership agreement was not concluded where the immediate aim of
the parties was not to make a profit,
but to fund the testing of the
quality of ore produced by a mine, with the object of forming a
company to exploit the mine if
the results of the tests proved
positive. De Viliers CJ stated as follow in this regard:
140
‘
Partnership
is a consensual contract between two or more persons, to place their
money, food, labour, and skill, or some or all
of them, in lawful
commerce or business, and to divide the profit and bear the loss in
certain proportions.
A
subscription by two or more persons towards a common object does not
constitute them partners, unless that object be, in whole
or in part,
the making of profit and the division of the profit between
subscribers
.
The object of the subscription in the present case was to provide
funds for the purpose of assisting the old syndicate in developing

the mine, and in testing the quality of the ores produced by the
mine.
The
intention of the subscribers undoubtedly was to form a company for
the purpose of making a profit out of the mine
.
But that company was not to be formed, and consequently no profit was
anticipated, unless the result of the test should be satisfactory
to
the subscribers.
The
tests proved unsatisfactory, the company was never formed, and no
partnership ever came into existence
.’
(Emphasis added.)
In
Hughes
v Ridley
141
the
Court was similarly concerned with a situation where the indications
were that the parties intended to conduct business through
the
medium of a company.The plaintiff in that case alleged that the
parties had agreed to conduct business jointly in the form
of a
limited liability company. When the first defendant caused plaintiff
to be dismissed as the operations manager of the company,
he
contended that this amounted to a repudiation of the partnership
which existed between him and the first defendant, and claimed

consequential relief. An exception was taken to the plaintiff’s
particulars of claim on the grounds that the allegations
proclaimed
that the business would be conducted incompany, not a partnership.
Levinsohn AJP referred
to the different legal consequences attendant on carrying on
business in a company as opposed to a partnership,
142
and went on to hold that
an intention to form a limited liability company is inconsistent
with an intention to form partnership.
143
His
reasoning in this regard appears from the following passage in the
judgment:
144
‘
If two
persons agree that they wish to form a company, that each is to
become a shareholder, each is to make a specific contribution
to the
company and the company is to carry on business, that agreement is,
in my view, not consistent with a partnership
.
The formation of a limited liability company presupposes an agreement
by the individuals concerned to submit to the articles of
association
of such limited liability company. If they so wish, they may conclude
a separate shareholders’ agreement which
will regulate their
relationship
inter
se
.
Thus,
viewing the above definition of partnership and also the specific
principles of company law, it is not two individuals carrying
on a
business jointly and for profit
.
What
we find rather is a company which is wholly separate from the
individuals who operate it which carries on the business
,
owns the assets, incurs liabilities to its creditors, makes profits
or losses and is able to declare such profits as dividends
to be
distributed to its shareholders.
Thus,
it is company law which regulates and determines the respective
rights and obligations
.’
(Emphasis added.)
This is not to say that
partners may not legitimately decide to convert an existing
partnership into a company by transferring
the assets of the
partnership to a company and henceforth operating the business
formerly conducted in the name of the partnership
in that of the
company.
Furthermore, a
partnership agreement may come about in circumstances where parties
who had initially intended to form a company
change their mind and
agree to continue their operations without being incorporated. In
such a case the question whether or not
a partnership came into
being would depend on whether the parties abolished the intention to
form a company and agreed to carry
on business without being
associated in company form.
145
It is well established
that a partnership contract need not be express; like any other
contract, it can come into being by tacit
agreement, that is,
by an agreement derived
from the conduct of the parties.
146
The only difference
between an express and a tacit agreement is that the former is
proved by evidence of verbal declarations or
a written instrument,
whereas the latter is proved by inference from the conduct of the
parties.
147
As the proof of a tacit
contract involves the drawing of inferences, itis governed by the
two cardinal rules for the proper drawing
of inferences in civil
cases, namely, that the inference sought to be drawn must be (a)
consistent with all the proved facts
and (b) the more natural or
plausible conclusion from amongst several conceivable ones.
148
For some years there
existed in our law two conflicting tests for inferring the existence
of a tacit contract. The stricter of
these tests, the ‘no
other reasonable interpretation’ test, was stated thus in
Standard
Bank of South Africa v Ocean Commodities Inc:
149
‘
In order to
establish a tacit contract it is necessary to show, by a
preponderance of probabilities, unequivocal conduct which is
capable
of
no
other reasonable interpretation that than the parties intended to,
and did in fact, contract on the terms alleged
.
It must be proved that there was in fact
consensus
ad idem.
’
(Emphasis added.)
The more lenient test,
the ‘preponderance of probabilities’ test, was
formulated as follows by Corbett JA in
Joel
Melamed and Hurwitz v Cleveland Estates (Pty) Ltd: (‘Joel
Melamed’)
150
‘
In this
connection it is stated that a court may hold that a tacit contract
has been established where, by a process of inference,
it concludes
that
the
most plausible probable conclusion from all the relevant proved facts
and circumstances is that a contract came into existence
.’
(Emphasis added.)
The ‘most
plausible probable conclusion’ test is consistent with the
rules for drawing inferences in civil cases,
whereas the ‘no
other reasonable interpretation test’ is not. The latter is
more in line with the second rule for
drawing inferences in criminal
cases, namely that the proved facts must exclude every reasonable
inference save the one sought
to be drawn.
This conflict was
apparently settled in
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and
Others
151
where
the Constitutional Court referred to the above-quoted passage in
Joel
Melamed
and
expressed its preference for the preponderance of probabilities
test.
152
The preponderance of
probabilities test, as formulated in Joel Melamed, does not refer to
unequivocal conduct which indicates
consensus
ad idem
.
This omission should not, in my view,be allowed to obscure the fact
that tacit contracts, like any other, require proof of an

unequivocal offer and acceptance, and that the parties reached
consensus. This appears clearly from the following pithy summary
by
Heher JA of the Court’s task in determining whether or not a
tacit contract has been proved, which neatly synthesizes
and
encapsulates both tests:
153
‘
This appeal
is about an alleged tacit agreement. As in all such cases, the court
searches for the evidence of manifestations of
conduct by the parties
that are unequivocally consistent with consensus on the issue that is
the crux of the agreement and, per
contram, any indication which
cannot be reconciled with it. At the end of the exercise, if the
party placing reliance on such an
agreement is to succeed, the court
must be satisfied, on a conspectus of all the evidence,that it is
more probable than not that
the parties were in agreement, and that a
contract between them came into being in consequence of their
agreement. Despite the
different formulations of the onus that exist
(see the discussion in (
Joel
Melamed)
at
164 G – 165G; and RH Christie & V McFarlane
The
Law of Contract in South Africa
6 ed at 88 – 9) this is the essence of the matter.’
Analysis
In my view the
applicant’s case isflawed in a number of respects.
First, it rests on an
apparent misconception of the role and significance of contractual
essentialia
. The main thrust of the founding affidavit and
oral argument was aimed at showing the presence of the three
partnership essentials
in the working relationship between the
parties. It seems to have been erroneously assumedthat that this was
sufficient to establish
that a partnership had come into being.
The presence of certain
contractual
essentialia
in a
de facto
arrangement does
not serve to prove that the parties involved have entered into a
contract. That is a factual question which involves
an enquiry into
whether or not the parties reached consensus regarding the creation
and contents of legally binding obligations
between them. It is only
once a contracthas been found to exist that the presence or absence
of certain essential termsplays
a role in classifying the type of
contract in question, for example, as one of sale as opposed to
lease, employment as opposed
to partnership, and so on.In this case
scant attention was paidto the primary question of whether the
parties
intended
to enter into a partnership agreement. I
deal further with this aspect below.
Second, the applicant
omitted in the founding affidavit to ‘plead’ the
agreement upon which it relies. The fact that
reliance is placed on
a tacit agreement does not derogate from the requirement to allege
when, where, by whom and on what terms
agreement was reached. A
party who alleges a tacit contract must both catalogue the conduct
and circumstances from which the
contract is to be inferred, and
must also allege the terms of the contract.
154
One searches in vain in
the founding affidavit for any indication as to precisely
when
the parties allegedly
reached agreement and
exactly
what terms
they
supposedly agreed. One is left in the dark as to how a partnership
agreement, which could only have included the Pioneer
project in
June 2004, came to embrace seven projects over a period spanningover
two and a half years. The situation seems tosuggest
reliance on a
developing agreement, but Van der Spuy is silent in this regard.
Instead all one finds is a catalogue of facts
aimed at demonstrating
that the essentials of a partnership were present in each of the
seven agricultural projects, coupled
with the assertion that a
partnership therefore came into being. The latter is a legal
conclusion. The facts on which this conclusion
must rest have not
have not, to my mind, been adequately set out. The following remarks
of Miller J in
Hart
v Pinetown Drive-In Cinema (Pty) Ltd
155
are
apposite in this regard:
156
‘
(W)here
proceedings are brought by way of application … (t)he petition
takes the place not only of a declaration but also
of the essential
evidence which would be led at a trial and if there are absent from
the petition such facts as would be necessary
for determination of
the issue in the petitioner’s favour, an objection that it does
not support the relief claimed is sound.’
The applicant’slack
of clarity regarding what was allegedly agreed between the parties
is reflected in a vague and ambivalent
formulation of the
declaratory relief sought. In the notice of motion and founding
affidavit what is apparently sought is a declaration
that a single
partnership, ‘the KOSP Partnership’, was established
between the parties in relation to the seven agricultural
projects
conducted during the relevant period.
157
However, certain
submissions made in the heads of argument filed on behalf of the
applicant seem to indicate that the contention
is that separate
partnership agreements were entered into in respect of the seven
agricultural projects, as opposed to one overarching
partnership
which embraced all seven projects:
‘…
the
essentialia of a partnership were present in respect of each of the
joint venture projects.
…
given the
absence of evidence to the contrary, it may be inferred from the
presence of the essentialia that
each
joint venture amounted to a partnership
’
158
‘
a proper
case has been made out …
to
find and declare that a partnership was established between Konsult
One and Strategy Partners in relation to each of the joint
venture
projects, and in particular the AgriFund Project
…’
.
159
(Emphasis
added.)
Van der Spuy makes the
submission that it is immaterial whether one refers to a partnership
which covers all of the agricultural
projects or to joint ventures
in relation to each one.
160
He states that:
161
‘
The only
reason that our partnership relationship appears to be continuous is
because chronologically the relevant joint venture
projects that were
embarked upon tended to overlap and / or run into one another and /
or to flow from previous ones.’
I do not agree that it
is immaterial whether one is talking about one single partnership or
seven separate partnerships. The question
is whether there was one
contract, or seven.In my judgment the failure on the part of the
applicant to set out precisely what
the alleged agreement between
the parties was, and to frame the declaratory relief accordingly,
stems from and is indicative
of the fact that there was no consensus
between the parties.This brings me to the next difficulty with the
applicant’s
case.
Third, there are letters
annexed to the founding affidavit, most of them written by Van der
Spuy himself, which demonstrate quite
clearly, in my view, that Van
der Spuy and Marais did not at any stage reach
consensus ad idem
that a partnership - properly so called - be formed between the
applicant and the respondent.
137.1 Van der Spuy’s
email of 7 March 2005
162
(quoted above at
paragraph 49) shows that no agreement had been reached between the
parties regarding the basis of their co-operation
at a stage when, on
the applicant’s own version
163
,
the periods of collaboration on the Pioneer, NWK and SWOV projects
had already run their course. In this regard I am unable to
accept
the submission advanced by applicant’s counsel that the words ‘
… ons het hier ook niks vas gemaak nie’
should be
interpreted to mean only that the parties had failed to reach
agreement on the question of profit sharing,
164
and not that no agreement
at all had been reached. To my mind this interpretation is strained
and offends against the plain meaning
of the words used. Moreover,
this argument fails to take into account the fact that the question
of profit sharing was of paramount
significance to these parties, and
it is difficult to credit that they would conclude an agreement which
left out the most important
element of the deal.
In
my view the words ‘beide SP en KO het gefouteer deur nie die
samewerkingsbasis reg van die begin of vas te maak nie’
and
‘ons het hier ook niks vas gemaak nie’, properly
construed in the context of the letter read as a whole, can only
be
taken to mean that the parties had not reached any agreement
regarding the basis of their co-operation.
137.2 Van der Spuy’s
email dated 27 October 2005
165
(quoted above at
paragraph 74) shows that the basis of co-operation between the
applicant and the respondent had still not been
formalised at that
stage, hence Van der Spuy’s request that they firm things up
before respondent included agriculture in
the ‘Grootene’
presentation which respondent was making to Sanlam.It is significant
that Van der Spuy referred, in
this regard, to his letter of 7 March
2005, wherein he first stated that the parties had erred by not
formalising the basis of
their working relationship right from the
start. This shows, to my mind, that Van der Spuy was well aware, as
at 27 October 2005,
that there was no agreement in place between the
parties regarding the basis of their collaboration. It is clear from
the letter
that he was unhappy about this situation and wanted to
baton things down, as is evident from his proposal that a joint
venture
be formed between the applicant and the respondent to handle
all projects referred by applicant to respondent. Marais’
response
166
to this email shows that
the proposal was not accepted. Marais expressed a preference for the
conclusion of a ‘master JV agreement’
which would
regulate principles and procedures for co-operation, rather than the
formation of a permanent corporate structure.
137.3 Van der Spuy’s
letter of 18 May 2006,
167
(quoted
above at paragraph 81), in which he proposed that the parties form a
private company called KOSP to hold shares in Manco,
and that the
parties split the shares in KOSP 60:40 in favour of respondent,
concluded with the words, ‘Kindly return a signed
copy of this
letter as acknowledgment of you acceptance of this arrangement.’
It is not in dispute that this never occurred.
137.4
Marais response to this
proposal, contained in his email of 12 July 2006
168
(quoted above at
paragraph 84), in which he indicated that respondent was comfortable
in principle with the model for co-operation
which had been proposed
by Van der Spuy,
but
that there would have to be further discussion about the allocation
of shares in Manco, cannot, in my view, be taken as an indication

that the parties had reached a binding agreement in regard to all the
matters mentioned in the letter of 18 May 2006, and that
they were
content to leave the issue of shareholding in Manco over for further
negotiation. Given the obvious importance which
the parties attached
to the division of the shares in Manco, I consider it more likely
that the parties intended that there should
be agreement on this
issue before a binding contract between them would come into
being.
169
The
evidence also shows, in my view, that the parties intended to enter
into a formal, written agreement to give legal effect to
their
intentions. I deal further with this aspect below.
137.5 Marais’
letter dated 12 September 2006
170
in which he confirmed
that he signed the SPE MOU on behalf of a joint undertaking between
the applicant and the respondent, includes
the words, ‘met
betrekking waartoe ’n verdere Memorandum van Verstandhouding
tans tussen ons gefinaliseer word’.
This shows, to my mind,
that the parties were still in the process of finalising their
agreement and had not yet reached consensus
regarding the basis for
their co-operation.
137.6
Van
der Spuy’s letter dated 5 October 2005
171
(quoted above at
paragraph 93), refers to the ‘gebrek aan ’n ooreeenkoms’,
making it clear that there was no agreement
between the parties at
that stage. I consider that this letter reveals Van der Spuy’s
real complaint, namely that, in his
view, the respondent had, knowing
full well that the parties had differing expectations, ‘strung
him along’ and avoided
firming up their arrangement. Needless
to say, this view is inconsistent with the allegation that the
parties had reached agreement
to form a partnership.
137.7
In
Van der Spuy’s letter of 6 October 2006
172
(quoted above at
paragraph 95) he states in terms that there was, at one stage, talk
of a closer co-operation between the applicant
and the respondent,
but that it did not materialise: ‘Dit het nie so uitgewerk
nie….’ His request that he and
Marais should ‘put
the matter to bed’ and sit down and work out the details of the
management of Manco and the JV clearly
shows, to my mind, that no
agreement had yet been reached between the parties.
137.8 The correspondence
exchanged between the parties during November 2006 to February 2007
shows, in my view, that although the
parties negotiated intensely,
they were ultimately unable to reach agreement regarding the
allocation of shares in Manco, and that
no contract was concluded
between them. The envisaged joint venture company was never formed as
a result of the failure of these
negotiations.
Having regard to the
contents of this correspondence - which forms part of the
applicant’s own case - I cannot begin to
be satisfied that it
is more probable than not that the parties reached agreement and
that a partnership came into being in consequence
of that agreement.
Indeed, in my view, the inference is irresistible that no
partnership agreement was ever concluded between
the parties.
Fourth, and on a related
note, there are numerous indications in the correspondence and
documents annexed to the affidavits which
are, in my view,
destructive of the notion that the parties intended to form a
partnership
, as opposed to some
other arrangement
of
their affairs.
The evidence shows, to
my mind, that the collaboration between the parties to develop and
exploit business opportunities was in
the nature of a fluid
association which is at odds with the permanent sort of structure
contemplated by a partnership. One sees,
for instance, that:
140.1 in the case of the
NWK project, Van der Spuy wanted to put a time limit on the
participation of the respondent, whereafter
he wanted to ‘go it
alone’ if the respondent had not yet achieved a result by
producing a suitable investor (See email
of 7 March 2005, quoted
above at paragraph 49.);
140.2 in the case of the
Capespan project, when the relationship between the applicant and the
respondent became strained due to
the standoff in the negotiations,
Van der Spuy ‘removed the Capespan opportunity from the table’
by asking that the
respondent play no further role in the project
(See email of 8 October 2005, quoted above at paragraph 93.);
140.3 Van der Spuy had
previously collaborated with ACMB on the NWK project and was at
liberty to approach the respondent to work
on the project once ACMB
indicated that it was no longer interested in pursuing this
particular opportunity.
173
The allegation that a
tacit partnership came into being between the applicant and the
respondent does not square with the evidence,
which shows that it
was frequently contemplated that third parties would be involved
together with applicant and respondent in
working on a particular
agricultural project and sharing the rewards if it came to fruition.
One sees that:
141.1 in the case of the
SWOV project, Van der Spuy’s letter of 7 March 2004,
174
(quoted above at
paragraph 49) shows that Attorneys Jan S De Villiers were involved
and that there was talk of them doing work on
risk and possibly
contributing capital and sharing in the carry.
141.2 in the case of
Capespan project, the email correspondence between Van der Spuy,
Gawie Niewoudt and Marais shows that the intention
was that Gawie
Niewoudt would be involved in the project and would share in the
rewards if the project was successful;
175
141.3 in the case of the
Citrifruit project, Van der Spuy’s email of 3 August 2006
176
shows that he
contemplated that NewFarmers would be involved in the initiative,
together with applicant and respondent, and that
NewFarmers would
share in any rewards which might materialise.
The correspondence and
documentation annexed to the founding affidavit shows, to my mind,
that Van der Spuy at all times contemplated
that a
company
would be formed to house the rewards to be derived in the event that
any of the opportunities involved in the agricultural projects

materialised and ‘paid off’. For example:
142.1 in the Pioneer
project, the applicant was hoping to acquire 15% of the consortium
which would invest in ‘Newco,’
the corporate vehicle
through which the proposed LBO would be conducted;
177
142.2 in the NWK Project
what was contemplated was that the applicant and the respondent would
form ‘Shareco’, a company
which would hold 15% of all the
NWK shares acquired by an investors’ consortium consisting of
applicant, respondent and a
third party sponsor with the necessary
capital to fund the NWK share purchase;
142.3 the SWOV project
envisaged that an investors consortium would acquire shares in the
newly formed SWOV, and that applicant
and respondent would form part
of the investors’ consortium, together with a capital sponsor,
and be afforded a 15% ‘carried
interest’ in the
investment in SWOV shares, funded via ‘preference shares at 70%
of prime’.
178
This
shows that the intention was that the consortium would form a company
to hold the SWOV shares;
142.4 in the case of the
Agrifund Project, both the applicant and the respondent intended to
form a company to house the respective
interests of the applicant and
the respondent in Manco.
In the light of what was
held in
Hughes
v Ridley
,
179
I consider that the
manifest intention to form a company to house the benefits derived
from the projects, if and when they materialised,
negates any
conclusion that the intention was to enter into a partnership.
Fifth, the applicant
makes no attempt deal with the obvious question of why parties such
as these would choose to conclude a contract
tacitly instead of in
writing. Marais and Van der Spuy are both highly educated,
sophisticated men of commerce with legal degrees
to boot. The
correspondence annexed to the founding affidavit reveals that they
were methodical and precise people who paid meticulous
attention to
detail. In sum, they were ‘i-dotters and t-crossers’.
Furthermore, as I shall elaborate below, the evidence
shows that
both Marais and Van der Spuy were aware that final approval for any
deal negotiated by Marais would have to be obtained
from Exco. I
consider it inconceivable, in these circumstances, that the
applicant and the respondent would have been content
to conclude
tacitly a contract with such important consequences as a
partnership. Mr Newdigate, who appeared for the respondent
together
with Mr Joubert, summed up the situation crisply: ‘If the
parties intended to enter into a partnership agreement,
why didn’t
they just say so?’
The evidence shows, in
my view, that the parties in fact intended to enter into a written
agreement regarding their future co-operation,
particularly in
regard to the Agrifund Project. On 12 May 2006, at a stage when the
AgriFund Project was gaining momentum, Marais
wrote to Van der Spuy
that, ‘(o)ns moet seker mettertyd iets dergeliks tussen ons
optrek.’
180
On 19 May 2006, Van der
Spuy sent Marais a written proposal for co-operation between the
parties which concluded with a request
that he ‘return a
signed copy of this
letter as acknowledgement
of your acceptance of this arrangement.’
181
When Marais wrote to Van
der Spuy confirming that he had signed the MoU with SPE on behalf of
a joint undertaking between the applicant
and the respondent, he
referred pertinently to the fact that a memorandum of understanding
between the applicant and the respondent
was still in the process of
being finalised.
182
To my mind the absence
of a written partnership agreement in circumstances where a written
agreement was contemplated by the parties,
is destructive of the
notion that a tacit partnership agreement was concluded.
Sixth, the applicant has
failed to deal with the question of whether Marais was duly
authorised to bind the respondent in entering
into the partnership
agreement for which it contends. In this regard the evidence shows
that Van der Spuy was at all times made
aware that any arrangements
made by Marais had to be approved by Exco.
147.1 On 2 July 2005,
Marais wrote to Van der Spuy regarding his proposals for the Capespan
project and stated that:
‘
Ek voel ek
kan die basis van verdeling van suksesgede motiveer by SP Exco soos
voorgestel
maar
moet Exco die finale se laat he
.
’
[sic]
183
Van der Spuy responded as
follows:
‘
Ek
aanvaar jy sal jou Exco toets
sodra jy,
Gawie en ek saamstem. Ons sal egter nie kan aangaan alvorens on sweet
of SP voertuig is of nie,’
to which Marais replied:
‘
Reg so, soos
ek sê ek verwag nie problem nie,
maar
is dit uit governance oogpunt verskulding om af te teken
.
’
184
(Emphasis
added.)
147.2 On 3 November 2005,
Marais responded as follows to Van der Spuy’s proposal of 27
October 2005 that the parties form
a joint venture company to handle
all transactions referred by the applicant with the with the
statement:
‘
E)k kan
onderstaande verby die Exco kollegas neem in hierdie vorm
.
My aanvoeling is dat ons beter suskseskanse het met die volgende
benadering (ek bly oop vir bespreking’).
185
(Emphasis
added.)
147.3 On 19 July 2006,
the day after Marais and Van der Spuy met to discuss the basis for
dividing profits in Manco, Marais wrote
to Van der Spuy and made
certain proposals for division of the Manco carried interest. In this
email he wrote:
186
‘
Ons kon nie
gister klaar praat nie en
ek
sal graag hierdie saak tot ’n punt wil kry waarmee ons albei
kan saamleef en waar ons die ander partye met ons kan saamneem
… Ek toets die volgende met jou (
nog
nie so bespreek met SP Exco
nie maar het Vrydagoggend geleentheid om dit to doen):’
(Emphasis added.)
The above quoted
passages make it clear that while Marais was the ‘face’
of the respondent in negotiations with Van
der Spuy, the latter was
under no illusion that final authority for all transactions lay with
Exco.
Indeed the evidence, to
my mind, shows that Van der Spuy was well aware of this fact and
that it was a bone of contention for
him. He was angered by what he
perceived as deceitful conduct when Marais, after provisionally
agreeing on 6 June 2006 that the
applicant’s contribution to
the first phase of the AgriFund project be valued at 40%, informed
him on 3 October 2006 that
the respondent was not prepared to
allocate the applicant a 40% shareholding in Manco. As is evident
from his letter of 6 October
2006,
187
(quoted above at para
95) Van der Spuy was of the view that Marais had given Exco false
expectations regarding the Agrifund project.
He considered this to
be an internal issue within the respondent, the intimation being
that Exco was bound by what Marais had
apparently agreed
vis
a vis
the
60:40 division in respect of the Agrifund.
Van der Spuy’s
view of the legal position is not correct. In circumstances where
Marais had at all times made it clear that
final approval by Exco
was required for all transactions, and where Van der Spuy was
clearly aware of this fact, there can be
no question of Marais
having ostensible authority to bind the respondent.
188
I consider that in the
absence of an allegation, let alone proof, that the alleged
partnership agreement contended for by the
applicant was authorised
by the respondent, the application must fail on this ground alone.
Seventh,the applicant’s
case is based on a distinction between the non-agricultural
projects, where the applicant was engaged
as an associate of the
respondent and was paid for services rendered, and the agricultural
projects, which it contends were conducted
in partnership with the
respondent. The evidence reveals, however, that in the case of the
NewFarmers Project, the applicant
submitted invoices to the
respondent (who it described as its ‘client’) for fees
based on time spent, and was paid
accordingly. The rendering of
invoices for services rendered in connection with the NewFarmers
Project is, to my mind, destructive
of the notion that this project
was conducted in partnership between the parties. It tends to
support Marais’ version that
the applicant, through Van der
Spuy, was engaged as an associate of the respondent and remunerated
for services in accordance
with the guidelines. Thus the pivotal
distinction between the agricultural and non-agricultural projects,
on which the applicant’s
entire case turns, is unsustainable,
and so also the applicant’s case.
Last, and by no means
least, Marais’ denial that the respondent ever intended to
enter into a partnership with the applicant
raises a dispute of fact
which brings into play the application of the rule in Plascon Evans.
I consider that it can by no stretch
be said that Marais’
allegations regarding the basis on which applicant and respondent
collaborated, and his denial that
the parties entered into a
partnership, are so far-fetched or clearly untenable that they may
be rejected merely on the papers.
On the contrary, Marais version is
consistent with and borne out by the contents of the correspondence
and the documents annexed
to both the founding and answering
affidavits.It follows that I am bound to decide the application on
the basis of the respondent’s
version, and that the
declaration sought cannot be granted.
Estoppel and quasi
mutual assent.
The applicant advanced
alternative arguments based on the doctrine of quasi-mutual assent
and estoppel.It was contended that the
respondent had, through the
correspondence and communications between Marais and Van der Spuy,
represented that its intention
was to enter into a partnership
189
and that respondent was
estopped from denying that it had entered into joint venture
partnership arrangements with the applicant
in relation to each of
the agricultural projects.
190
In my view these
arguments are unsustainable on the facts of this case.Having regard
to the totality of the evidence, I can find
no indicationthat the
respondent represented that it intended to enter into a partnership
contract with the applicant.
It seems to me that in
the case of all the agricultural projects other than the Agrifund
project, the true nature of the agreement
between the parties is
that they were collaborating loosely in the pursuit of speculative
opportunities on the understanding
that
if and when
they
‘struck gold’, they would reach agreement on exactly how
the rewards were to be shared and what sort of commercial
structure
would be set up to house those rewards. In the case of the Agrifund
project, both parties agreed from the outset that
a company should
be formed to house the shares in Manco.
Nor can it be said,
given the contents of the lengthy, on-going negotiations between the
parties to which I have referred, that
the applicant’s belief
that respondent had entered into a partnership, was reasonable.
Request for oral
evidence
Applicant submitted
that, in the event of it being found that the application could not
properly be decided on motion, it would
be appropriate to make an
order in terms of Rule 6(5)(g) directing that Marais be cross
examined regarding his assertion that
the respondent did not enter
into a partnership with the applicant in regard to the agricultural
projects.
There is no need for
such a course, as I consider that the application, which is largely
based on documentary evidence, is capable
of being decided on
motion.
I might add that I would
have had grave doubts about the propriety of referring the matter
for oral evidence in the particular
circumstances of this case,
where the applicant chose to proceed by way of motion, knowing full
well that the existence of the
partnership was disputed, and then
proceeded to institute an action, which involves determination of
the very same question.
Conclusion
In the result the first
prayer for declaratory relief fails and the second prayer for a
debatement of account does not arise to
be considered.
I therefore make the
following order:
(i) The application is
dismissed with costs, such costs to include the costs occasioned by
the employment of two counsel.
---------------------------------------
D M DAVIS AJ
Acting High Court Judge
FOR
APPLICANT:
Adv. A J Nelson SC et Adv. J L van Dorsten
FOR
FIRST RESPONDENT:
J Newdigate SC et Adv C Joubert
1
Founding
Affidavit para 12, Record p 12.
2
See
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E – 635B.
3
Ibid.
4
Annexure
VDS 111, Record p 335 read with annexure D to Annexure VDS 5, Record
p 115 – 116.
5
Founding
Affidavit para 1.3, Record p 8.
6
Annexure
HM 32, Record p 429, at p 433.
7
Ibid.
8
Answering
Affidavit para 5 – 7, Record p 344.
9
Annexure
VDS 105, Record p 298.
10
Answering
Affidavit para 9 – 10, Record p 345.
11
Answering
Affidavit para 10, Record p 345.
12
Answering
Affidavit para 12 - 13, Record p 345 – 346.
13
Answering
Affidavit para 13, Record p 346.
14
Answering
Affidavit para 15, Record p 346; Annexure HM 1, Record p 387.
15
Answering
Affidavit para 15, Record p 346; Annexure HM 1, Record p 387.
16
Annexure
HM 1, Record p 387 at p 389.
17
Answering
Affidavit para 17, Record p 347.
18
Answering
Affidavit para 18, Record p 348.
19
Answering
Affidavit para 19 - 20, Record p 348; Annexure HM 2, Record p 390.
20
As
at 2004 these included work on the agricultural portfolio of the
Ohlthaver & List Group in Namibia, advising the Tuinroete
Agri
Co-Op and work in the wine industry: Answering Affidavit para 26,
Record p 249 – 350 and Annexure VDS.
21
Answering
Affidavit para 21 – 22, Record p 348 – 349.
22
Answering
Affidavit para 23, Record p 349.
23
Answering
Affidavit para 30, Record p 353; Founding Affidavit para 14, Record
p 12 – 13.
24
Answering
Affidavit para 34, Record p 354.
25
Annexures
HM 13, Record p 403; HM 23, Record p 419.
26
Answering
Affidavitpara 33, Record p 354; para 35 – 40, Record pages 357
– 359; Annexures HM 27 to HM34, Record pages
423 – 438.
27
Answering
Affidavit para 31, Record p 353.
28
Answering
Affidavit para 46, Record p 360.
29
Founding
Affidavit para 15, Record p 13.
30
Answering
Affidavit para 54, Record p 362.
31
Annexed
as VDS 1, Record p 85 at p 90.
32
Founding
Affidavit para 25, Record p 17; Answering Affidavit para 55, Record
p 363.
33
Founding
Affidavit para 26, Record p 17; Answering Affidavit para 56, Record
p 363.
34
Annexure
VDS 2, Record p 91.
35
Founding
Affidavit para 35, Record p 20; Answering Affidavit para 62, Record
p 364.
36
Answering
Affidavit para 60, Record page 364.
37
Founding
Affidavit para 36, Record p 20.
38
Answering
Affidavit para 63, Record page 365.
39
Annexure
VDS 5, Record p 102 at para 5.4 – 5.5, page 105.
40
Annexure
VDS 5, Record p102 at para 5.7, page 105 and para 5.11, page 106.
41
Answering
Affidavit para 65, p 365.
42
Annexure
VDS 5, Record p 102 at para.
43
Founding
Affidavit para 42, Record p 22.
44
Annexure
VDS 8, Record p 124 (Email dated 4 February 2005).
45
Annexure
VDS 8, Record p 124 (Email dated 7 February 2005).
46
Founding
Affidavit para 49, Record p 25; Answering Affidavit para 70, Record
p 368.
47
Answering
Affidavit para 68.3, Record p 367.
48
Annexure
VDS 11, Record p 128 at p 129.
49
Record
p 136.
50
Annexure
VDS 11, Record p 128 at p 136.
51
Annexure
VDS 9, Record p 125.
52
Annexure
VDS 10, Record p 127.
53
Founding
Affidavit para 63, Record p 30; Answering Affidavit para 74.3,
Record p 370.
54
Founding
Affidavit para 70, Record p 31.
55
Founding
Affidavit para 72 – 74, Record p 32.
56
Annexure
HM 32, Record p 429 at p 430.
57
Annexure
VDS 22, Record p 157, read with Annexure HM 32, Record p 429 at p
431 – 432.
58
Un-numbered
Annexure, Record p 423, read with Annexure HM 28, Record p 424.
59
Annexure
HM 30, Record p 427; Annexure HM 31, Record p 428.
60
Annexure
VDS 22, Record p 157.
61
Annexure
HM 33, Record p 437.
62
Annexure
VDSR 1, Record p 469.
63
Replying
Affidavit para 98 – 101, Record p 466 – 467.
64
Annexure
VDS 22, Record p 157 and Annexure VDSR 2, Record p 470.
65
Annexure
VDSR 1, Record p 469.
66
Annexure
VDS 23, Record p 159 at p 162.
67
Annexure
VDS 23, Record p 159 – 162.
68
Annexure
VDS 26, Record p 172.
69
Annexure
VDS 27, Record p.173.
70
Annexure
VDS 28, Record p 174.
71
Annexure
VDS 80, Record p 255 at para 1.3, p 257.
72
Founding
Affidavit para 94 – 96, p 37 – 38.
73
There
is a dispute on the papers regarding the nature of this
presentation. Van der Spuy alleges that it involved the setting
up
of a fund to make investments in agricultural. Marais alleges that
it involved funding of a type of ‘agribank’
which would
provide debt financing for agricultural corporations. He denies that
it involved the establishment of a private equity
fund. Nothing
turns on this dispute, however.
74
Annexure
VDS 35, Record p 183.
75
Annexure
VDS 36, Record p 184.
76
Founding
Affidavit para 103, Record p 40.
77
Annexure
VDS 37, Record p 185.
78
Annexure
VDS 38, Record p 186.
79
Founding
Affidavit para 106, Record p 41.
80
Annexure
VDS 39, Record p 187. (Email dated 12 May 2006 from Marais to Van
der Spuy.)
81
Ibid.
82
Annexure
VDS 39, Record p 187. (Email dated 13 May 2006 from Van der Spuy to
Marais.)
83
Annexure
VDS 42, Reord p 190.
84
Annexure
VDS 40, Record p 188.
85
Annexure
VDS 41, Record p 190.
86
Founding
Affidavit para 112, Record p 44.
87
Answering
Affidavit para 81.6, Record p 377 - 378.
88
Answering
Affidavit para 81.7, Record p 378.
89
Annexure
VDS 80, Record p 256 at para 1.5, Record p 257.
90
Annexure
VDS 43, Record p 192 (Email dated 12 July 2006 from Marais to Van
der Spuy).
91
Founding
Affidavit para 115, Record p 44; Answering Affidavit para 81.10,
Record p 379.
92
Answering
Affidavit para 81.8, Record p 378 – 379; Annexure VDS 89,
Record p 276.
93
Annexure
VDS 46, Record p 196.
94
Annexure
VDS 47, Record p 201.
95
Annexure
VDS 49, Record p 205.
96
Annexure
VDS 52, Record p 207.
97
Annexure
VDS 52, Record p 209.
98
Annexure
VDS 55, Record p 212.
99
Answering
Affidavit para 83, Record p 380.
100
Ibid.
101
Annexure
VDS 58, p 217.
102
Ibid.
103
Founding
Affidavit para 132, Record p 51- 52; Answering Affidavit para 85,
Record p 361.
104
Annexure
VDS 59, Record p 222 at p 223
105
Annexure
VDS 60, Record p 224.
106
Annexure
VDS 61, Record p 225.
107
Founding
Affidavit para 137, Record p 54; Answering Affidavit para 87, Record
p 361.
108
Annexure
VDS 62, Record p 226 (Email dated 13 October 2006 from Marais to Van
der Spuy).
109
Annexure
VDS 62, Record p 226. (Email dated 14 October 2006 from Van der Spuy
to Marais.)
110
Annexure
VDS 72, Record p 242.
111
Founding
Affidavit paragraph 149, Record p 57.
112
Annexure
VDS 80, Record p 255 (Email dated 30 November 2006).
113
Annexure
VDS 80, Record p 256 – 258 (Letter dated 27 November 2006).
114
Annexure
VDS 81, Record p 266.
115
Annexure
VDS 83, Record p 268.
116
Ibid.
117
Annexure
VDS 90, Record p 277.
118
Annexure
VDS 89, Record p 276.
119
Annexure
VDS 95, Record p 283.
120
Annexure
VDS 96, Record p 284.
121
Annexure
VDS 98, Record p 286 – 287.
122
Answering
Affidavit para 101, Record p 383.
123
Founding
Affidavit para 179, Record p 68.
124
Annexure
VDS 100, Record p 292.
125
Annexure
VDS 101, Record p 293.
126
Annexure
VDS 102, Record p 294.
127
Founding
Affidavit para 183, Record p 70; Annexure VDS 105, Record p 298.
128
Founding
Affidavit para 185, Record p 70; Answering Affidavit para 103,
Record p 383.
129
Annexure
VDS 105, Record p 298.
130
See
eg
Joubert v Tarry & Co
1915 TPD 277
;
Bester v Van
Niekerk
1960(2) SA 779 (A) at 783 H – 784 A;
Purdon v
Muller
1961 (2) SA 211
(A) at 218 B – D;
M
ü
hlmann
v M
ü
hlmann
1981 (4) SA 632
(W) at 634 C – F;
Pezzutto v Dreyer
[1992] ZASCA 46
;
1992 (3) SA 379
(A) at 390 A – C;
Ponelat v Schrepfer
2012 (1) SA 206
(SCA) at para [19];
Butters v Mncora
2012 94)
SA 1
(SCA) at para [11].
131
Ibid.
132
A
fourth requirement referred to by Pothier, namely, that the contract
should be a legitimate one, has been discounted by the
courts for
being common to all contracts. (See eg
Bester v Van Niekerk supra
n 4 at 784 A;
Butters v Mncorasupra
n 130 at p 5 F –
G).
133
Purdon
v Muller supra
130 4 at p 218 E – F;
Pezzutto v Dreyer
supra
130 at p 390 C – D.
134
J
J Henning 19
LAWSA
2ed para 264, 265
135
J
J Henning
Op.Cit.
para 263, 265.
136
1930
CPD 219.
137
At
p 221 - 211.
138
J
J Henning
Op. Cit.
para 261 and authorities cited at footnote
39.
139
(1888)
6 SC 307
140
At
p 314.
141
2010
(1) SA 381
(KZP).
142
Para
[22].
143
P
ara
[30].
144
Para
[23].
145
Ford
v Abercrombie
1904 TS 878.
146
Butters
v Mncora supra
n 130 at 7 E – F.
147
R
H Christie and G B Bradfield
The Law of Contract in South Africa
6 ed p 86 (referring to the
dictum
of Wessels JA in
Bremer Meulens (Edms) Bpk v Floros
1966 1 PH A 36 (A)).
148
CWH
Smith and DT Zeffert 9
LAWSA
2 ed para 847; R H Christie and
G B Bradfield,
op.cit.
p 87, referring to
R v Blom
1939
AD 188
at 202 – 203 and
Govan v Skidmore
1952 (1) SA
732
N) at 734.
149
1983
(1) SA 276
(A) at p 292.
150
[1984] ZASCA 4
;
1984
(3) SA 155
(A) at p 165 B - C
151
2010
(3) SA 455
(CC).
152
At
para [58].
153
Butters
v Mncora supra
n 130 at para [34].
154
See
Bezuidenhout v Otto and Others
1996 (3) SA 339
(WLD);
First
National Bank of SA Ltd v Richards Bay Taxi Centre (Pty) Ltd
[1999]
2 All SA 533
(N) 542 a; LTC Harms
Amler’s Precedents of
Pleadings
6 ed p 95.
155
1972(1)
S A 464 (D).
156
At
469 C – E.
157
Founding
Affidavit para 7.1, Record p 9; para 15, Record p 13.
158
Applicant’s
Heads of Argument, para 48, Record p 525; para 49; Record p 526.
159
Applicant’s
Heads of Argument, para 51, Record p 526 – 527.
160
Replying
Affidavit para 56, Record p 455.
161
Ibid.
162
Annexure
VDS 9, Record p 125.
163
Founding
Affidavit, para 15, Record p 13.
164
This
is a
naturalia
of a partnership and it is not essential that
there be agreement in this regard for a partnership to come into
being, provided
that the parties
intend
to enter into a
legally binding partnership and are content to leave the aspect of
profit sharing for later negotiation and determination.
165
Annexure
VDS 35, Record p 183.
166
Annexure
VDS 36, Record p 184.
167
Annexure
VDS 40, Record p 188.
168
Annexure
VDS 43, Record p 192.
169
See
Command Protection Services (Gauteng) (Pty) Ltd t/a Maxi Security
v S A Post Office Ltd
[2012] ZASCA 160
(16 November 2012) at
Para [12] – [13]
170
Annexure
VDS 52, Record p 209.
171
Annexure
VDS ???, Record p ???
172
Anexure
VDS 61, Record p 225.
173
Annexure
VDS 7, Record p 121.
174
Annexure
VDS 9, Record p 125.
175
Annexure
VDS 23, Record p 159.
176
Annexure
VDS 27, Record p 173.
177
Annexure
VDS 1, Record p 85 at p 90.
178
Annexure
VDS 11, Record p128 at p 136; Annexure VDS 13, Record p 138 at p
142.
179
Supra
n 141
180
Annexure
VDS 39, Record p 187 (Email from Marais to Van der Spuy).
181
Annexure
VDS 40, Record p 188.
182
Annexure
VDS 55, Record p 212.
183
Annexure
VDS 23, Record p 159 at p 161.
184
Annexure
VDS 23, Record p 159 at p 159.
185
Annexure
VDS 36, Record p 184.
186
Annexure
VDS 45, Record p 154.
187
Annexure
VDS 61, Record p 225.
188
Standard
Bank of SA Ltd v Oneanate Investments (Pty) Ltd
1995 (4) SA 510
(C).
189
Applicant’s
Heads of Argument para 50 – 56.
190
Applicant’s
Heads of Argument para 111, Record p 558.