Cameron-Down v En Commandite Partnership PJ Laubscher And MC Cameron-Dow and Others (AC 75/09) [2015] ZAWCHC 48; [2015] 9 BLLR 958 (LC); (2015) 36 ILJ 3086 (LC) (15 April 2015)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2015
>>
[2015] ZAWCHC 48
|

|

Cameron-Down v En Commandite Partnership PJ Laubscher And MC Cameron-Dow and Others (AC 75/09) [2015] ZAWCHC 48; [2015] 9 BLLR 958 (LC); (2015) 36 ILJ 3086 (LC) (15 April 2015)

THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Exercising
its Admiralty Jurisdiction
Case
No: AC 75/09
DATE:
15 APRIL 2015
In
the matter between
MICHAEL
CAMERON-DOWN
.................................................................................
PLAINTIFF
And
THE
EN COMMANDITE PARTNERSHIP PJ LAUBSCHER
AND
MC
CAMERON-DOW
.......................................................................
FIRST
DEFENDANT
PIERRE
JAN
LAUBSCHER
..................................................................
SECOND
DEFENDANT
THE
MOTOR FISHING VESSEL
JULIETTE
.......................................
THIRD
DEFENDANT
BASIC
BLUE TRADING 232
CC
.........................................................
FOURTH
DEFENDANT
Coram
:
ROGERS J
Heard:
16-19 FEBRUARY and 2, 3, 4 & 12 MARCH 2015
Delivered:
15 APRIL 2015
JUDGMENT
ROGERS
J:
Introduction
[1]
The plaintiff
(‘Cameron-Dow’) invokes this court’s admiralty
jurisdiction in respect of various alleged maritime
claims. The first
defendant is an alleged
en
commandite partnership
between Cameron-Dow and the second defendant (‘Laubscher’).
The fourth defendant (‘Basic
Blue’) is a close
corporation in which Laubscher holds a 70% member’s interest.
The third defendant is the fishing
vessel
Juliette
,
in relation to which Cameron-Dow says that he and Laubscher had a
40:60 partnership. Cameron-Dow is an attorney with an interest
in
fishing. Laubscher is a fisherman and qualified skipper.
[2]
The only witnesses were
Cameron-Dow and Laubscher. Mr van Embden appeared for the former. Mr
Walther appeared for Laubscher and
Basic Blue.
[1]
[3]
Cameron-Dow sues for
repayment of money he lent to the alleged partnership and for an
accounting by Laubscher in respect of the
partnership (‘the
main claims’). In the alternative, and if, as Laubscher
alleges, there was no partnership, Cameron-Dow
seeks repayment of the
same money on the basis that it was lent to Laubscher personally
(‘the alternative claim’).
Cameron-Dow issued summons
during August 2009, advancing at that stage only the main claims. On
16 February 2015 (the first day
of the trial) I granted Cameron-Dow
leave to amend his summons so as to include the alternative claim.
[4]
Pursuant to the issue
of summons
Juliette
was arrested. During June 2010 Laubscher brought an application for
her judicial sale. Cameron-Dow opposed and brought his own

application for the judicial sale of
Juliette
on different terms. The competing applications were argued before
Cleaver J during October 2010. On 18 November 2010 he delivered

judgment, granting Laubscher’s application and dismissing
Cameron-Dow’s.
Juliette
was duly sold (Laubscher bought it through an entity nominated by
him). On 2 March 2011 the sale proceeds (R1 063 897,87)

were paid into a fund account under the control of the Registrar.
Following the payment out of certain expenses, the balance of
the
fund account as at 7 March 2012 was R1 038 467,20. That
amount together with interest remains in the account.
[5]
The issues in broad
summary are: (i) whether a partnership agreement was concluded;
(ii) if so, whether the partnership was
confined to the ownership and
letting out of
Juliette
or whether it included the fishing and other operations conducted by
Juliette
;
(iii) whether the partnership agreement, if found to exist, was
unlawful, having regard to the Marine Living Resources Act
18 of 1998
(‘the MLR Act’) and policies promulgated thereunder;
(iv) in relation to the alternative claim, whether
it has
prescribed; (v) the amounts advanced by Cameron-Dow to the
partnership alternatively to Laubscher.
The law to be applied
[6]
Counsel assumed in
argument that South African law applied. This is not necessarily
correct, having regard to s 6(1)(a) of
the Admiralty
Jurisdiction Regulation Act 105 of 1983 (‘the AJR Act’).
If the claims asserted by Cameron-Dow are maritime
claims in regard
to which a South African court had admiralty jurisdiction as at 1
November 1983 (‘old’ maritime claims),
I would be
required to apply the law which the High Court of Justice of the
United Kingdom in the exercise of its admiralty jurisdiction
would
have applied as at that date to such a claim. There are two
qualifications to this general principle: (i) Section 6(1)(a)
does
not derogate from the provisions of South African statutes applicable
to the matter in question (s 6(2)). (ii) Section
6(1)(a)
does not supersede an agreement relating to the system of law to be
applied (s 6(5)).
[7]
The expression
‘maritime claim’ is defined in s 1(1) of the AJR
Act. Cameron-Dow’s partnership claims arise
out of or relate to
(i) the ownership of a ‘ship’ as defined in the Act;
(ii) the employment or earnings
of a ship; and (iii) an
agreement with regard to the ownership, employment and earnings of a
ship. These are ‘old’
maritime claims (paras (a), (b) and
(c) of the definition; Hare
Shipping
Law & Admiralty Jurisdiction in South Africa
2
nd
Ed at 28).
[2]
These paragraphs of the definition were among those on which
Cameron-Dow relied in his rule 4(3) certificate for
Juliette’
s
arrest. Broadly speaking, therefore, issues relating to the
formation, terms and incidents of the alleged partnership, including

the alleged co-ownership of
Juliette
,
are governed by English admiralty law as at 1 November 1983, subject
to the two qualifications previously mentioned. I was not
addressed
on whether such law differed in any material respect from our own.
Generally, our law of partnership is similar to England’s.
[8]
Because s 6(1)(a)
does not derogate from relevant South African statutes, the alleged
partnership agreement would be void if
it violated the MLR Act and if
voidness is on a proper construction of the statute the result of
violation.
[9]
Because s 6(1)(a)
does not override a contractual choice of law, the question might
arise whether, assuming a contract was
concluded, the parties tacitly
selected our common law as the governing law (cf Forsyth
Private
International Law
5
th
Ed at 325-329). The alleged contract has all its connections with
South Africa though arguably a tacit selection of ‘South

African law’ would not in itself override s 6(1)(a)
because that provision, which is part of South African law, makes

English admiralty law as at 1 November 1983 the South African law
applicable to the claim. Because the effect of s 6(1)(a)
was not
appreciated by the parties, there were no allegations or evidence as
to a tacit choice of law.
[10]
I intend thus to
proceed on the basis that English admiralty law as at 1 November 1983
strictly speaking governs the partnership
claims but that any
difference between that law and our own is not material in the
present case. The illegality defence based to
the MLR Act remains
relevant.
[11]
The alternative claim
is not in my opinion a maritime claim. Mr Walther did not argue that
because Cameron-Dow had invoked admiralty
jurisdiction I could not
exercise this court’s ordinary civil jurisdiction to decide the
alternative claim if necessary.
However, that claim, and in
particular the defence of prescription, would be governed by our own
law. Even if the alternative claim
were a maritime claim, it would
not be an ‘old’ maritime claim, so our own law would in
any event apply.
Separation
of issues
[12]
In regard to the main
claims, Cameron-Dow claims inter alia a rendering and debatement of
an account. Both sides filed expert reports
by accountants setting
out their respective views on the content of the account, assuming
one had to be rendered. There were significant
differences between
them. At an early stage of the trial I expressed reservations about
hearing this evidence before a determination
of the merits. The
reasons for my reservations were these: (i) If I found against
Cameron-Dow on the main claims, the accounting
evidence would be
unnecessary. (ii) If I found for Cameron-Dow on the main claims,
the content of the account might nevertheless
be affected by my
findings on the terms and extent of the alleged partnership. (iii) In
any event, there were no pleadings
on the content of the account, the
claim simply being for the rendering and debatement of an account.
The issues in relation to
the content of the account were thus not
properly defined.
[13]
Mr Walther supported my
prima facie view that the accounting evidence should be heard at a
later stage if necessary. Mr van Embden
did not resist this approach
but understandably wanted clarity as to what was standing over. On 19
February 2015 I gave a formal
direction that, to the extent that such
matters were otherwise properly before me,
[3]
the amounts of the income and expenditure to be included in any
account which Laubscher might be obliged to render, and thus the

amount if any payable to Cameron-Dow thereunder, were to stand over
for later determination, all other issues arising on the pleadings
to
be decided first.
The
facts
[14]
Cameron-Dow wrote many
memoranda to Laubscher recording their discussions and transactions.
It might thus be thought surprising
that the existence of the
partnership and its terms should be in doubt. The explanation is
twofold: (i) First, Laubscher sought
to neutralise the inference
that would ordinarily arise from uncontested communications of this
kind (as to which, see
McWilliams
v First Consolidated Holdings (Pty) Ltd
1982
(2) SA 1
(A) at 10E-H) by claiming that he told Cameron-Dow not to
bombard him with memoranda. Once they had agreed the terms of a
partnership,
Laubscher would seek his own legal advice. Laubscher
also said that he only received some of the memoranda several months
after
the date on which they were written. (ii) Second, the
memoranda were somewhat rambling and diffuse.
2005 to
August 2006
[15]
Cameron-Dow’s
son, Steven, and Laubscher operated fishing boats out of Hout Bay
harbour. Steven’s boats were
Growler
(a ski boat) and
Highlander
(a deck boat). Laubscher’s boat was
Wicked
Lady
. Cameron-Dow
had a tunny boat called
Corsair
.
Steven introduced Laubscher to Cameron-Dow in mid-2005 with a view to
the latter assisting Laubscher in making application to
the
Department of Environmental Affairs and Tourism (‘the
Department’) for tuna pole fishing rights in terms of s 18

the MLRA. (The Department had at that time invited applications for
various kinds of commercial fishing rights.) Cameron-Dow duly

assisted Laubscher, the application being in the name of Basic Blue
which traded under the name Wicked Lady.
[16]
In early December 2005
Wicked Lady
sank. Laubscher asked Cameron-Dow to help him prepare the statement
which had to accompany the prescribed incident report, also
relevant
to insurance.
[17]
On 28 February 2006 the
Department awarded Basic Blue commercial tuna pole fishing rights for
eight years starting 1 January 2006.
Basic Blue was only entitled to
use
Wicked Lady
(though it had sunk in the meanwhile) with a maximum crew of six. In
terms of s 13 of the MLRA the exercise of Basic Blue’s

commercial fishing rights required an annual permit. Steven had a
company called Twoline Trading 163 (Pty) Ltd (‘Twoline’)

which also held fishing rights.
[18]
At about this time
C-Craft CC (‘C-Craft’), an entity controlled by one
Raymond Cooper (‘Cooper’), was constructing
a fishing
boat in Hout Bay (the boat which became
Juliette
).
Laubscher, who had recently lost
Wicked
Lady
, and Steven
displayed an interest in acquiring her. C-Craft furnished them with a
quotation on 8 February 2006 for a price of R1 683 210,

with a 5% deposit to be paid on order, R500 000 one week after
order, another R500 000 two weeks after order and the
balance
upon launch.
[19]
One option which Steven
and Laubscher considered was financial assistance from Cameron-Dow.
Laubscher says another option for him
was to get financial assistance
from his main customer, Blue Continent Products (‘BCP’).
Cameron-Dow’s involvement
must have been discussed by 16
February 2006, the date on which he wrote to Cooper proposing a price
of R1,425 million and different
payment terms. He said he would
assist with issuing a guarantee or suretyship. On the same day he
wrote the first of many memoranda
to Steven and Laubscher. From this
memorandum it appears that some sort of joint venture involving the
three of them was under
discussion. The new boat (I henceforth call
her
Juliette
,
though this name was only chosen later, the name
Wicked
Lady
being used in
earlier memoranda) would be owned 40:40:20 by Steven, Laubscher and
Cameron-Dow. The profits from
Growler
,
Highlander
and (when it was launched)
Juliette
would be used to pay off the amounts owing on these boats, whereafter
they would look to buy a fourth. The acquisition of a fourth
boat
would provide a means for Laubscher to obtain independence.
Cameron-Dow thought
Juliette
should be financed by a bank, in regard to which he was happy to
assist with a guarantee.
[20]
On 2 June 2006
Cameron-Dow issued a cheque for R100 000 from his firm’s
trust account to C-Craft to secure
Juliette
but it was only
banked on 29 June 2006, after the conclusion of the agreement for the
purchase of the boat, which occurred on 23
June 2006. On that day,
and following a meeting between himself, Steven and Laubscher on 21
June 2006, Cameron-Dow concluded a
written agreement with Cooper to
buy
Juliette
for R1,38 million excluding VAT (R1 573 200 inclusive of
VAT, a slight reduction from the quotation of February 2006).
There
was to be a deposit of R100 000 (Cameron-Dow had already
provided a cheque), R500 000 by 7 July 2006, R200 000
by 31
July 2006, R300 000 on launch and the balance at a monthly rate
of R100 000 as from the month following launch.
The contract
recorded that although Cameron-Dow undertook the obligations of the
purchaser in his personal capacity, the boat would
‘be
transferred to and be owned by a partnership and/or close corporation
(to be finally determined by [Cameron-Dow] in his
discretion)’.
Steven and Laubscher signed the agreement beneath the words
‘Confirmed for good order and as witnesses’.
[21]
Cameron-Dow testified
that his next memorandum, bearing the date 28 July 2006 and addressed
to Steven and Laubscher, was dictated
on 22 June 2006 but only typed
by his secretary after he had left for an overseas trip. It referred
to the ‘thoughts’
discussed by them the previous day (ie
on 21 June 2006). Since Cameron-Dow says that the partnership
agreement was concluded during
June 2006, this memorandum is on his
version the closest to a contemporaneous recordal. The following is a
summary of the memorandum
read as a whole:
(i) The end object was that there should be five
fishing boats – three owned by Steven, one by Laubscher and one
by Cameron-Dow.
(ii) Two of these boats,
Growler
and
Highlander
, were already in existence. Steven would continue
to own them. He still owed money on these boats to (among others) his
father.
(iii) The third boat,
Juliette
, would
initially be acquired by Cameron-Dow and Laubscher in a 40:60 ratio.
Laubscher would provide funding of R350 000. Cameron-Dow
would
provide the balance and would assist Laubscher with his share of the
funding if necessary.
(iv) The fourth boat (this became
Nicky-B
)
would be owned by Steven alone. He would get funding from BCP and his
father.
(v) The fifth boat (this never materialised) would
be acquired by Cameron-Dow and Laubscher in a 60:40 ratio.
(vi) Steven would apply the majority of the profits
from his existing two boats to assist in the financing of the third,
fourth
and fifth vessels; and Cameron-Dow and Laubscher would allow
the profits from
Juliette
to be used in a similar way.
(vii) Cameron-Dow, who intended raising his share
of the funding from the existing Investec mortgage bond over his
home, would
need to be promptly repaid. He acknowledged that
Laubscher was likely to be in a similar position in respect of his
share of the
funding.
(viii) Boat ownership and fishing operations could
and probably should be separated (ie the identity of the boat owner
and
the fishing operator would be different).
(ix)
Juliette
and the fifth boat (those in
which Cameron-Dow and Laubscher would have a joint interest) would be
owned by close corporations.
If Laubscher wished to become
independent rather than carrying on ‘in partnership’, a
swap would be made so that each
of them had one boat.
(x) There was, in general, an agreement that
‘matters should be decided by fairness wherever possible’,
that they
should not try to ‘negotiate hard with each other’
and that pooling resources and working together gave each of them
the
best chance of achieving their objective.
[22]
Cameron-Dow concluded
his memorandum thus:
‘
The
above are various thoughts for your consideration. Obviously any of
them can be changed in any way by discussion, if either
of you wants
to improve the thinking in any aspect.’
[23]
On 29 June 2006 C-Craft
banked the deposit of R100 000. On 7 July 2006 Cameron-Dow
caused the next instalment of R500 000
to be paid by way of a
cheque drawn on his firm’s trust account. The cheque does not
appear to have been signed by him personally,
so this may well have
occurred while he was overseas.
[4]
The next instalment, of R200 000, was due on 31 July 2006. On
that date Cameron-Dow paid C-Craft R300 000, again by way
of a
cheque drawn on his firm’s trust account. Cameron-Dow testified
that he mistakenly overpaid. Laubscher in his evidence
doubted it was
a mistake and suspected that the additional R100 000 was
initially intended as a further payment towards the
next boat for
Steven. Be that as it may, C-Craft credited the full R300 000 in
reduction of the price owed on
Juliette
.
[24]
Thus by 31 July 2006
Cameron-Dow had contributed R900 000 to fund the purchase of
Juliette
.
He had also prepared a memorandum for Laubscher and Steven dated 28
July 2006 recording what had been discussed on 21 June 2006.
[25]
Also on 28 July 2006,
Cameron-Dow wrote to his daughter’s boyfriend, Chris Pike
(‘Pike’), a fisherman, to ascertain
Pike’s interest
in skippering one of the boats in the joint venture. This letter was
copied to Laubscher and Steven. While
the letter is not a model of
clarity, it accords in general terms with the contemporaneous
memorandum. The letter to Pike said
that the boat currently in
Cooper’s yard would be owned by Laubscher and Cameron-Dow, as
would another boat in due course.
He said that he and Laubscher would
either own the two boats in partnership or Laubscher would own the
one and he would own the
other. He again mentioned separating boat
ownership from fishing operations. Together with
Highlander
and the new deck boat to be acquired by Steven, there should fairly
shortly be four deck boats. Laubscher and Steven would each
skipper
one and Laubscher’s son might be interested in skippering a
third. Cameron-Dow suggested that Pike consider skippering
the
fourth, in regard to which he sketched certain proposals.
[26]
There was no reason for
Cameron-Dow not to have furnished copies of his memorandum and letter
to Laubscher promptly on or after
28 July 2006. At any rate, and
regardless of when exactly Laubscher received them, he did not
challenge their contents.
[27]
The memorandum of 28
July 2006 had mentioned a contribution of R350 000 from
Laubscher. It emerged that there was a misunderstanding
as to the
precise amount and the parties then agreed that Laubscher would pay
R300 000, which sum Laubscher deposited into
Cameron-Dow’s
firm’s trust account on 4 August 2006. Cameron-Dow used
R218 000 of this amount to pay Pertech for
electronics for
Juliette
.
(The purchase agreement with C-Craft had allowed a provisional sum of
R60 000 for electronics.) Since there is no clear evidence
that
the remaining R82 000 of Laubscher’s R300 000 was
applied to
Juliette
,
one will need to be bear this balance in mind in any accounting
between the parties.
[28]
On 4 August 2006
Cameron-Dow wrote to Steven, with copy to Laubscher, recording the
financial position between father and son as
at that date. He said
that the Investec mortgage bond over his home had provided the
funding for
Highlander
and now for
Juliette
.
He recorded that Steven owed him R575 000 in respect of
Growler
,
Highlander
and the deposit of R100 000 to Steven’s next boat (the one
following
Juliette
).
He also recorded that he had to date paid R900 000 towards
Juliette
.
The profits from the fishing venture would need to be used to service
the interest on Cameron-Dow’s mortgage bonds. Although
not
altogether clear, I understand Cameron-Dow to have been saying that
the profits from the operations on Steven’s boats
should be
applied to service interest on Cameron-Dow’s mortgage bonds to
the extent of R575 000; and that Laubscher,
because of his 60%
interest in
Juliette
,
would also have to accept responsibility (ie out of his share of
Juliette’s
profits) for some of the interest on the money borrowed by
Cameron-Dow to fund the acquisition of
Juliette
.
He concluded by observing that in some instances it would be
extremely difficult if not impossible to allocate expenses and
interest
accurately between the various operations and proposed that
in such instances ‘we must just settle on a fair way and not
worry about too much precision’.
[29]
On 14 August 2006
Cameron-Dow wrote again to Laubscher and Steven, attaching for
convenience a copy of his letter of 4 August 2006
and asking them to
confirm the arrangement so that he and his wife would have peace of
mind that the repayment of the Investec
facility was a priority,
which he recognised would rank equally with Steven’s credit
agreement with Standard Bank (he still
owed R90 000 to the bank)
and Laubscher’s additional bond taken out for his contribution
to
Juliette
(ie Laubscher’s R300 000). By ‘rank equally’
Cameron-Dow plainly meant that, in regard to the profits made
on
Steven’s boats, these would be applied pro rata as a first
charge to repay Cameron-Dow’s advances to Steven of R575 000

and Standard Bank’s R90 000; and that in regard to the
profits made from
Juliette
,
these would be applied pro rata as a first charge to repay the
funding provided by Cameron-Dow and Laubscher (to date R900 000

and R300 000 respectively).
[30]
Steven and Laubscher
countersigned the letter of 14 August 2006. This probably occurred at
a meeting on 15 August 2006, to which
Cameron-Dow made reference in
his next memorandum to them dated 28 August 2006. The following
paragraphs bear quoting:
‘
Thirdly,
I record the decision made that the new vessel will be named
Juliette
and will go through Wicked Lady Fishing/Pierre for the purposes of
recovering the VAT input, even though same is owned as to 60%
to
Pierre and 40% to me, and in due course this will be transferred into
a close corporation, once acquired and registered for
VAT.
The operating company will be
Basic Blue in respect of
Juliette
and Pierre will account to
me for 40% of profits generated by
Juliette
in both entities,
in a manner we can work out together.
In due course when the 5
th
vessel is built and is owned as to 60% by me or a close corporation
in which I have 60% membership and 40% by you or the close

corporation in which you have 40% we can decide whether to simplify
matters by either changing to 50/50 in each of the two entities
(or
reducing to 1 entity to minimize bookkeeping) or separate by each
selling 40% to the other so that we have one CC each.’
[31]
I do not accept
Laubscher’s explanation for his failure to challenge this and
earlier memoranda and letters. I referred earlier
to the
McWilliams
case where Miller
JA said the following (at 10E-H, citation of authority omitted):
‘
I
accept that “quiescence is not necessarily acquiescence”…
and that the party’s failure to reply to a
letter asserting the
existence of an obligation owed by such party to the writer does not
always justify an inference that the
assertion was accepted as the
truth. But in general, when according to ordinary commercial practice
and human expectation firm
repudiation of such an assertion would be
the norm if it was not accepted as correct, such party’s
silence and inaction,
unless satisfactorily explained, may be taken
to constitute an admission by him of the truth of the assertion, or
at least will
be an important factor telling against him in the
assessment of the probabilities and in the final determination of the
dispute.
And an adverse inference will the more readily be drawn when
the unchallenged assertion had been preceded by correspondence or
negotiations between the parties relative to the subject-matter of
the assertion.’
[32]
There was no
satisfactory explanation here. I reject as false Laubscher’s
evidence that from the outset he told Cameron-Dow
not to send him
memoranda until they had reached firm agreement, whereafter he would
consult his own attorney. If that had been
Laubscher’s
attitude, Cameron-Dow would not have bought
Juliette
or paid the money. He would also not have wasted his time writing
letters and memoranda which bear the hallmark of an attempt to
be
transparent and avoid confusion. Furthermore, the memoranda and
letters I have mentioned do indeed purport to record arrangements

between the parties and one of them was even counter-signed, yet
Laubscher on his own evidence did not seek advice.
[33]
Laubscher’s
suggestion that he sometimes received memoranda or letters months
after they were written was made in a generalised
fashion whenever a
particular memorandum presented him with difficulty. There was no
reason for Cameron-Dow to have held back any
of the memoranda and
letters. I may add that in a pre-trial conference the parties agreed
that documents in the bundles were what
they purported to be and that
communications addressed to parties were received by them and, where
the date of receipt was indicated,
received by them on such date.
Although each party reserved his right to require the other formally
to prove these matters in respect
of any particular document, there
was no such challenge prior to trial. Furthermore, it was not put to
Cameron-Dow in cross-examination
that any of the memoranda and
letters were not sent to or received by Laubscher or that they were
only received long after the
dates they bore.
[34]
These documents, viewed
in the light of Cameron-Dow’s evidence, satisfy me that
Cameron-Dow and Laubscher concluded an agreement
essentially in the
terms alleged by Cameron-Dow. It is unnecessary to decide whether the
agreement was strictly speaking one of
partnership because it would
nevertheless, subject to the illegality defence, be a valid contract.
The partnership label, and whether
it was
en
commandite, would only be important
if some aspect of the parties’ relationship inter se or with
outsiders needed to be answered
with reference to the law of
partnership. That is not the case here. We are concerned only with a
dispute between Cameron-Dow and
Laubscher, and the terms of their
agreement can be sufficiently deduced from the evidence.
[35]
It is unnecessary to
decide what contracts (if any) involving Steven and his entities were
concluded. There were certainly one or
more loan agreements between
Steven and his father. There was also an intention by the three of
them to cooperate in fishing operations
which were expected to be
conducted on four or five deck boats. Laubscher explained in evidence
that it is advantageous for skippers
to cooperate with each other in
locating fish at sea. They could also cooperate in getting supplies
at lower cost and in marketing
their fish to best advantage. But
regardless of what broader contracts or intentions may have existed,
there was a separate contractual
relationship between Cameron-Dow and
Laubscher in regard to the vessels in which they were to be jointly
interested.
[36]
The terms of the
agreement between the two of them included, in my view, at least the
following:
(a) Cameron-Dow and Laubscher would be joint owners of
Juliette
in the ratio 40:60, though they envisaged that they
might in due course hold such interest indirectly through a close
corporation.
(b)
Juliette
would be employed in tuna pole
fishing operations and skippered by Laubscher, for which he would be
entitled to remuneration of
15% of the total value of fish caught.
This would be a cost to the fishing operations before the division of
profit.
(c) All profit made from the ownership of
Juliette
and the operations conducted by her would be shared in the ratio
40:60.
(d) Although
Juliette
was to be owned by them
personally or in due course by a close corporation, the fishing
operations would be conducted by Basic
Blue by virtue of the tuna
pole fishing rights it held.
(e) Given that Basic Blue was 70% owned by Laubscher and
that Cameron-Dow was not a member thereof, Laubscher was obliged to
use
his position in Basic Blue to ensure that Cameron-Dow received
40% of the profits made in Basic Blue from the operations of
Juliette
.
(f) The profits from the ownership of
Juliette
and the operations thereof would be applied in the first instance to
repay the financial contributions made by Cameron-Dow and
Laubscher
together with interest at the rates charged by their banks on their
respective mortgage bonds.
(g) They would use the profits from
Juliette
to
facilitate the purchase of a second boat in which they would be
jointly interested, with the ownership and profit-sharing ratios

reversed. To the extent that the second boat was used to exploit
commercial fishing rights in the name of one or other of them
or of
an entity controlled by one or other of them, the same arrangement as
in respect of Basic Blue would apply mutatis mutandis.
(h) Once there were two fully paid boats, either of them
could elect to terminate their relationship on the basis that each of
them
would be entitled to sole ownership (directly or indirectly
through a close corporation) of one boat.
[37]
The terms set out above
accord in their essence with those pleaded by Cameron-Dow in his
particulars of claim as amplified in his
replication and trial
particulars. That an agreement with these terms was concluded in
mid-2006 is fortified by subsequent events
and repeated references by
Cameron-Dow in memoranda and letters to the joint venture and
partnership with Laubscher. It would be
tedious to refer to all of
them but I shall mention some below.
September
2006 – July 2007
[38]
The 2006/2007 tuna
season started in September 2006. The parties had expected that by
then
Juliette
would have been delivered. She was not. Much of the later trouble can
be traced back to this delay. Because
Juliette
was not ready, Steven and Laubscher reached an interim arrangement
for Laubscher to skipper
Highlander
.
[39]
The main problem as
2006 drew to a close was that
Juliette
had still not been delivered. On 18 December 2006 Laubscher and
Cameron-Dow concluded an addendum with Cooper/C-Craft relating
to the
purchase of
Juliette
.
By that stage Cameron-Dow had paid C-Craft R900 000. The next
payment, in terms of the original agreement, was R300 000
on
launch. Because Cameron-Dow had paid an extra R100 000 at an
earlier stage and because Cameron-Dow and Laubscher had taken
direct
responsibility for the electronics (to which a provisional sum of
R60 000 had been allocated in the original contract),
the
revised amount due on launch was R140 000. In the addendum
Cameron-Dow and Laubscher agreed to pay that amount within
24 hours
while Cooper guaranteed to provide a seaworthy certificate by 22
December 2006. Cooper also agreed, by way of the addendum,
that for
every day the seaworthy certificate was delayed beyond 22 December
2006 he would pay R2000 as damages which he acknowledged
as fair,
having regard to lost fishing profits and previous delays.
[40]
This addendum, which
was written out by Cameron-Dow in hand in Laubscher’s presence,
described the parties as Cooper/C-Craft
on the one side and ‘Wicked
Lady Fishing/Pierre Laubscher/MC Cameron-Dow (Wicked Lady)’.
Both Laubscher and Cameron-Dow
signed the agreement. This is further
confirmation that Laubscher understood that there would be joint
ownership of
Juliette
and a joint interest in the fishing profits conducted by Basic Blue
under the style Wicked Lady.
[41]
On the following day,
and in accordance with the addendum, an amount of R140 000 was
paid to C-Craft. Of this sum, R40 000
was in the form of a
cheque which Cameron-Dow caused his firm to issue on its trust
account. The balance of R100 000 was paid
by Steven, apparently
from profits made by
Highlander
and in the spirit of the broad joint venture under discussion. The
precise character of this latter payment is contentious. As
a matter
of pleading, Cameron-Dow alleged that Steven lent R100 000 to
the partnership and ceded the claim to his father prior
to the
institution of action.
[42]
On 29 December 2006 a
survey certificate in respect of
Juliette
was issued by the South African Maritime Safety Authority (‘SAMSA’).
However, it is common cause that the boat was
still not in a
satisfactory condition. A test run in Hout Bay during January 2007
revealed that the pumps were not operating properly.
To jump ahead,
Laubscher testified that he worked hard on the boat over the next few
months.
Juliette’s
first fishing trip was in April 2007 but its propeller fell off on 16
May 2007 and Steven had to tow her back to harbour using
Highlander
.
In July 2007 Laubscher was able to take
Juliette
on a snoek fishing trip to St Helena Bay.
Juliette
began tuna fishing during September/October 2007.
[43]
Reverting to the
chronology, Laubscher testified that in mid-January 2007 he returned
to Hout Bay from a fishing trip on
Highlander
.
He said he was unhappy about two things, namely (i) that in his
view Steven’s company Twoline had not paid him everything
he
was due for skippering
Highlander
and (ii) that
Juliette
was still not ready. He also claims to have ascertained that Steven
had lost interest in the joint venture. His evidence was that
he met
Cameron-Dow in Hout Bay on about 16 January 2007. He was angry and
wanted to get out of his relationship with the Cameron-Dows.
He said
he wanted his money back and that Cameron-Dow could keep
Juliette
.
In chief he testified that Cameron-Dow rejected this, saying that
Laubscher should keep the boat.
[44]
Given the money
Cameron-Dow had paid, this simple description of the discussion seems
most implausible. In cross-examination Laubscher
was taken to his
replying affidavit in his application for
Juliette’s
judicial sale. In that affidavit he said that a ‘partnership or
joint venture of sorts’ had initially been envisaged
between
Cameron-Dow, Steven and himself but that it was ‘never
finalised or crystallised’. He also said that Steven
‘withdrew
completely’ from the proposed joint venture in August 2006.
(His oral evidence was less precise as to when
Steven supposedly
indicated his lack of interest. The fact that Steven had caused
Twoline to pay R100 000 towards the purchase
of
Juliette
on 19 December 2006 is inconsistent with the proposition that Steven
was no longer interested in pursuing the joint venture, and

Cameron-Dow denied that his son had ever indicated any such thing to
him.) In para 12 of his affidavit, Laubscher went on to say
the
following (I shall substitute for his nomenclature the terminology
used in this judgment):
‘
After
various discussions to resolve contributions to the purported
venture, Cameron-Dow and I resolved the matter in early 2007
on the
basis that I would take delivery and ownership of
Juliette
on completion by C-Craft. I would thereafter contract Basic Blue to
conduct fishing operations. Cameron-Dow would be entitled to
40% of
the net profit I received from Basic Blue’s fishing operations
in order to recoup his contribution, plus interest.
Net profit was
pegged at 30% of turnover generated by fishing operations.’
To explain why he had only thereafter paid R164 000
to Cameron-Dow, he added that the latter’s action in causing
Juliette
to be arrested made it impossible for him to make any
further payments to Cameron-Dow.
[45]
When asked in
cross-examination whether the above assertions were correct,
Laubscher – after a lengthy pause – answered
in the
affirmative.
[46]
Some of the features of
the partnership alleged by Cameron-Dow can be discerned in
Laubscher’s affidavit. However, the version
in the affidavit
seems to be that although a partnership had been discussed in 2006
the agreement was never finalised and that
a settlement was concluded
in January 2007 the terms of which were that Cameron-Dow abandoned
his right to part-ownership of
Juliette
and limited his claim to one for repayment of the monies advanced by
him plus interest on the basis, however, that he would only
be
entitled to such repayment as and when same could be funded from the
lesser of 40% of Basic Blue’s net profits or 30%
of Basic
Blue’s fishing turnover.
[47]
Laubscher did not plead
this supposed agreement in the present proceedings nor was it put to
Cameron-Dow in cross-examination. What
Mr Walther put to Cameron-Dow
was that he and Laubscher had met in mid-January 2007, that the
latter had been disgruntled and that
there had been discussion about
the one buying the other out. Cameron-Dow remembered Laubscher being
unhappy about the state of
Juliette
but denied that there had been talk of one of them buying out the
other – he said that happened much later. Mr Walther then

clarified his cross-examination by saying that it was
not
Laubscher’s case that the discussion had resulted in any
agreement, only that there had been such a discussion.
[48]
It is only by an
agreement of the kind that Laubscher alleged in the affidavit that he
could have made good his claim to be the
sole owner of
Juliette
.
I am satisfied that no such agreement was reached in January 2007.
The version alleged in the affidavit is commercially implausible.
It
was not pleaded or put to Cameron-Dow. Laubscher only adopted it,
somewhat hesitantly, when it was shown to him in cross-examination.
[49]
The existence of the
supposed settlement is also at odds with two memoranda which
Cameron-Dow wrote to Steven and Laubscher in January
2007 and with a
letter he wrote at that time to Cooper. The first of the memoranda,
dated 18 January 2007, did not refer to any
meeting between the
parties within the last few days. Cameron-Dow was concerned about the
large amount still owing on his mortgage
bond and wanted repayment
from the fishing operations of Twoline and Basic Blue
[5]
as soon as possible. He referred to the payment of R100 000 made
by Twoline towards
Juliette
on 19 December 2006, R50 000 of which was said to have been by
way of repayment of money owed by Twoline to Laubscher as skipper
of
Highlander
and the other R50 000 an advance by Twoline ‘to Pierre or
Wicked Lady Fishing (Pierre and Michael partnership)’.
He said
that he was mindful of the fact that Laubscher had also borrowed
money on his bond and that whatever arrangement regarding
repayment
applied to him must extend to Laubscher as well. For the moment the
confusion regarding the character of Twoline’s
payment of
R100 000 is not germane. What is important is that Cameron-Dow
expressly referred to an existing partnership between
himself and
Laubscher and that the memorandum is entirely at odds with the
settlement mentioned by Laubscher in the affidavit.
Laubscher did not
react to this memorandum by refuting its contents.
[50]
On 23 January 2007
Cameron-Dow wrote to Cooper regarding the delays in the delivery of
Juliette
and the outstanding work she required. It is common cause that
Laubscher prepared the snag list attached to the letter. In the

opening paragraph Cameron-Dow said that he was writing ‘after
careful discussion and consideration of all issues with my
partner
Pierre Jan Laubscher’. In a postscript he described himself and
Laubscher as part-owners of the boat. He put Cooper
to terms to
complete the outstanding work.
[51]
On the next day, 24
January 2007, Cameron-Dow wrote a memorandum to Laubscher and Steven,
referring to a meeting held the previous
evening in Hout Bay. He
described his memorandum as a supplement to the one of 18 January
2007. He dealt with money owed by Twoline
to Laubscher. He recorded
that they had agreed that, of the R100 000 paid by Twoline to
C-Craft on 19 December 2006, R50 000
would be treated as
part-payment by Twoline of money owed to Laubscher while the other
R50 000 would be treated as an advance
by Twoline to ‘Wicked
Lady Fishing (myself and Pierre in partnership)’. He concluded
the memorandum by saying that
the next month or two might be ‘fairly
tight with Pierre and I having to get
Juliette
fishing and Steven committed to paying for his new vessel…’.
This memorandum once again confirms the existence of
the partnership
and cannot be reconciled with the allegations made by Laubscher in
the affidavit.
[52]
Also inconsistent with
Laubscher’s allegations regarding the alleged settlement of
January 2007 is that Cameron-Dow made further
payments in connection
with
Juliette
.
These included R42 406,88 and R5650 to insurance brokers on 2
February 2007 and 7 May 2007 respectively for the insurance
of
Juliette
;
R5650 and R17 000 on 6 March 2007 and 3 April 2007 respectively
to HBBOA for diesel; and R20 000 and R15 000 to
C-Craft on
10 May 2007 and 6 June 2007.
[53]
The diesel payment of
R17 000 was recorded in a memorandum by Cameron-Dow to Laubscher
and Steven on 18 April 2007. This memorandum
referred to the
subsisting ‘
Juliette
joint venture/partnership’ between Cameron-Dow and Laubscher.
[54]
Cameron-Dow dealt with
the payment of R20 000 to C-Craft in a memorandum to Laubscher
and Steven on 17 May 2007, saying that
the payment ‘was a
straight loan from Mike to Raymond Cooper as Pierre was not happy
that it should be paid on behalf of
the
Juliette
joint venture and Mike elected to make it on his own account’.
(It is unclear what this payment was intended to cover. The
payment
pre-dated the incident in which
Juliette’s
propeller fell off.)
[55]
The payment of R15 000
to C-Craft
[6]
related to the acquisition of a new propeller after
Juliette’
s
propeller fell off at sea, being half the cost of the replacement
propeller sourced by Cooper. It is common cause that Laubscher’s

view was that C-Craft should take full responsibility and that they
(he and Cameron-Dow) should not contribute. Cameron-Dow nevertheless

made the payment in an attempt to get
Juliette
seaworthy again as soon as possible. He mentioned this payment in his
memorandum to Laubscher and Steven of 7 June 2007, a memorandum
which
in several places referred to the ‘
Juliette
joint venture’.
[7]
[56]
It will be recalled
that in Laubscher’s affidavit alleging the January 2007
settlement agreement he made reference to net
profit being ‘pegged
at 30% of turnover generated by fishing operations’. As with
his reference to the 40% of net profit,
this figure of 30% of
turnover does have a link with reality, though I reject Laubscher’s
evidence regarding the supposed
settlement. On 5 February 2007,
apparently following a suggestion by an official of the Department,
Basic Blue submitted an application
for approval to increase
Juliette’
s
crew from 6 to 14.
[8]
(In the Department’s parlance, this was a request for an
‘increased effort’. Tuna pole fishing rights such as

those held by Basic Blue are limited not by tonnage of fish but by
crew numbers.
[9]
)
Cameron-Dow assisted Basic Blue to prepare the application, and
Cameron-Dow commissioned Laubscher’s oath.
Juliette’s
owner was described as ‘Wicked Lady Fishing’. The
application recorded that Basic Blue had already received approval
to
switch its catching vessel from
Wicked
Lady
to
Juliette
.
[57]
One of the documents
which had to be submitted with the application was an agreement
between the applicant and the boat owner. To
that end, Cameron-Dow
drafted a short ‘catching agreement’ between Basic Blue
and the owner, described as ‘Wicked
Lady Fishing (Pierre Jan
Laubscher)’. In terms of the catching agreement the owner made
Juliette
available to Basic Blue to conduct commercial tuna fishing
operations. The period was two years, thereafter terminable on three

months’ notice. Basic Blue was required to maintain the boat
and pay all running expenses. As consideration for its right
to
operate the boat, Basic Blue was obliged to pay the owners ‘30%
of the value of its catch to be determined by the full
amount
received by [Basic Blue] for such catch, and to be vouched to the
reasonable satisfaction of the Owners from time to time’.
For
convenience I shall refer to this consideration as rent. It is from
the catching agreement that Laubscher seemingly derived
the 30%
figure in his allegations regarding the supposed settlement of
January 2007.
[58]
Cameron-Dow was tackled
in cross-examination about his role in drafting and commissioning the
application of 5 February 2007. It
was put to him that, on his
version regarding ownership of
Juliette
,
the application – by attaching an agreement which reflected the
owner as Wicked Lady Fishing in the person of Laubscher
– was
knowingly false (ie failed to disclose Cameron-Dow’s 40% share
of the boat). While Cameron-Dow rejected imputations
on his
integrity, his answers on this particular issue were not very
satisfactory.
[59]
Cameron-Dow testified
that the catching agreement was prepared solely to meet the formal
requirements imposed by the Department
and did not affect his
partnership with Laubscher. He was suggesting, as I understood him,
that the catching agreement was not,
as between himself and
Laubscher, intended to have contractual effect. The 30% figure, he
said, was standard in relation to catching
agreements.
[10]
I am not satisfied that I can treat the catching agreement as
simulated. Deneys Reitz, who wrote a letter of demand on behalf of

Cameron-Dow on 27 April 2009, appear to have been instructed to treat
it as a valid contract.
[11]
However, Cameron-Dow is nevertheless right that this does not make
much difference as between himself and Laubscher. I have already

concluded that the partnership agreement related not only to the
ownership of
Juliette
but also to the fishing operations conducted by her. The rent (30% of
fishing turnover) would be an amount received by the partners
in
respect of their ownership of
Juliette
.
Assuming that the partners did not incur any expenditure properly
attributable to their ownership of
Juliette
(all or most of which would, in terms of the catching agreement, be
borne by Basic Blue), the rent would constitute net profit
in their
hands and be shared between them in the ratio 40:60. Basic Blue’s
payment of the rent would reduce its net profits
from the fishing
operations, in which the partners were also entitled to share in the
ratio 40:60. Without the catching agreement
and resultant obligation
of Basic Blue to pay rent, the net profits in Basic Blue would be
correspondingly higher.
July 2007 –
June 2008
[60]
I have already
mentioned certain events which occurred over the period February to
July 2007. In the latter part of August 2007
Laubscher sent
Cameron-Dow a budget forecast and cash flow projection for ‘Juliette
Fishing’ covering the period September
2007 to August 2008
(‘the budget’). The evidence regarding the budget was
somewhat confused. The witnesses made reference
to the budgets
attached to the plaintiff’s request for trial particulars
[12]
without clearly identifying which version, if any, of those budgets
was the version Laubscher sent to Cameron-Dow. I nevertheless
think
it is possible to conclude that as a matter of probability the budget
Laubscher sent to Cameron-Dow was the one at P112-113
and that the
other versions (at P108-111) came from Laubscher’s discovery. I
say so because the version of the budget at
P112-113 is the only one
which is reconcilable with the comments made by Cameron-Dow in his
email to Laubscher of 22 August 2007
in reaction to the budget.
[13]
[61]
While the detail of the
budget is not of great moment, Laubscher’s general approach is
important. He projected gross sales
for the year of R2,5 million,
from which he deducted cost of sales of R1 285 068 and
operating costs of R188 715,
giving a net profit of R1 026 217.
On the second page of the budget, in a segment headed ‘Distributable
Earnings’,
he recorded a ‘profit retention’ of
R177 936 (ie profit to be ploughed back into the fishing
operations), the
balance of R848 280 being split 40:60 between
Cameron-Dow and himself (R339 312 and R508 968, described
as ‘Vessel
Hire MCD’ and ‘Vessel Hire PJL’).
Laubscher could only have prepared this budget in the belief that
there existed
a 40:60 partnership between Cameron-Dow and himself and
that the partnership covered the whole of the ownership and
operations
of
Juliette
.
I reject as untrue Laubscher’s explanation that the budget was
simply an exercise in ‘playing around with various
numbers’,
if by that he meant that he did not at that time genuinely believe
there to be a 40:60 partnership. The budget
does not reflect the 30%
rent payable by Basic Blue to the owner in terms of the catching
agreement. As I have explained, the inclusion
of this figure would
have made no difference to the distributable profit; there would
simply have been a slightly different presentation,
with a 40:60
split of the rent and a further 40:60 split of a reduced net profit.
[62]
Juliette
started fishing for tuna in
September/October 2007, with Laubscher as skipper.
[63]
Cooper began to press
Cameron-Dow for payment of the balance allegedly owing on
Juliette
.
Cooper’s reconciliation of 19 November 2007 was followed by a
tax invoice for R423 460 on 23 April 2008. This included
an
amount of R69 000 for additional work done at the purchaser’s
request.
[64]
On 12 May 2008
Cameron-Dow sent a short memorandum to Laubscher and Steven, saying
that he was awaiting a set of accounts as he
had not received a
report or accounting of any description whatsoever.
[65]
On 19 June 2008
Cameron-Dow addressed a letter to Cooper/C-Craft dealing with the
latter’s claim for R423 460. Cameron-Dow
testified, and
Laubscher did not dispute, that Cameron-Dow sent this letter in draft
to Laubscher before finalising it. The only
part of the draft which
Laubscher asked Cameron-Dow to correct was Laubscher’s skipper
fee – 15%, rather than 12%.
Cameron-Dow’s letter was
aimed at trying to persuade Cooper to accept R50 000 in full and
final settlement. To this
end, Cameron-Dow foreshadowed a substantial
claim for damages against Cooper/C-Craft. In so doing, he described
the ‘broad
agreement” between Steven, Laubscher and
himself. In regard to the
Juliette
,
this involved the 40:60 venture between himself and Laubscher.
Elsewhere in the letter he specifically referred to this agreement
as
a partnership. The partnership’s damages claim against
Cooper/C-Craft was said to amount to R324 360.
[14]
Once again, Laubscher’s part in this letter confirms the
existence and scope of the partnership.
July 2008 –
July 2009
[66]
I can summarise the
remaining history more briefly. Cameron-Dow’s repeated requests
for an accounting from Laubscher in the
second half of 2008 fell on
deaf ears.
[15]
They finally met in mid-December 2008 on which occasion, according to
Cameron-Dow, there was discussion about the possibility of
one of
them buying out the other. Cameron-Dow wrote to Laubscher on 12
December 2008 suggesting that it would probably be best
to dissolve
the partnership. He wrote again on 18 February 2009 with a
provisional calculation of what he believed he was owed
for monies
lent and for his profit-share.
[67]
Laubscher then engaged
attorneys, Bisset Boehmke & McBlain (‘BBM’). There
was correspondence and telephonic communication
between Cameron-Dow
and BBM over the period March to June 2009. In a letter dated 6 March
2009 BBM notified Cameron-Dow that they
had contacted an accountant,
Mr Peter Napier (‘Napier’), to prepare ‘a proper
partnership accounting’.
Napier was, so it transpired, Basic
Blue’s accounting officer. I reject as unworthy of credence
Laubscher’s evidence
that this exercise was undertaken on a
‘hypothetical’ basis as if there were a partnership as
alleged by Cameron-Dow.
BBM gave no hint of this and did not say that
the exercise was being undertaken on a without-prejudice basis. Later
in March 2009
Napier sent Cameron-Dow draft partnership financial
statements for the years ended February 2007, February 2008 and
February 2009.
These drafts appear to be confined to vessel hire
which the partnership was entitled to receive from Basic Blue. For
obvious reasons
they were unacceptable to Cameron-Dow.
The institution of action
[68]
Summons was issued on
18 August 2009, at which time
Juliette
was arrested.
[69]
Laubscher filed his
plea in December 2009. It was signed by Laubscher’s then senior
counsel and Laubscher’s new attorneys,
John Taylor &
Associates Inc. In the plea Laubscher described himself as the owner
of
Juliette
.
Although Laubscher denied being a member of the partnership cited as
the first defendant, he pleaded the conclusion of an oral
agreement
in June 2006 with the following terms: (i) that Cameron-Dow
would lend Laubscher money sufficient to enable the
latter to acquire
Juliette
;
(ii) that Basic Blue would conduct the fishing operations on
Juliette
;
(iii) that the profits from the fishing operations would be
split 40:60 between Cameron-Dow and Laubscher; (iv) that

Cameron-Dow’s allocation of 40% of the profits would first be
applied in repayment of the monies lent by him to Laubscher.

Laubscher admitted, further, that over the period June 2007 to May
2008 Cameron-Dow was paid R164 000, adding that this

constituted payment of Cameron Dow’s 40% share of the net
profits. Laubscher admitted that he had not rendered an account
but
denied being obliged to do so.
[70]
This version of the
plea came very close to admitting Cameron-Dow’s version of the
partnership. The main point of difference
is that Laubscher did not
admit that Cameron-Dow’s ‘loan’ was repayable as a
first charge against the fishing
profits. Instead he pleaded that
Cameron-Dow’s 40% share in the fishing profits (effectively,
Basic Blue’s profits)
would first be applied in repaying
Cameron-Dow’s loan obligation. Of course, this makes no
commercial sense. If Cameron-Dow’s
right was an ongoing
entitlement to 40% of Basic Blue’s profits and nothing more,
there was no point in distinguishing between
money received by him on
account of his ‘loan’ and other money. Be that as it may,
at this point Laubscher’s
defence seemed simply to be that
Cameron-Dow’s share of the profits did not amount to more than
R164 000.
[71]
The litigation then
progressed (if one can call it that) at snail’s pace. There
were the competing applications by Laubscher
and Cameron-Dow for the
judicial sale of
Juliette
,
resolved by Cleaver J’s judgment of 18 November 2010. In the
meanwhile C-Craft and Cooper in January 2010 issued summons
against
Cameron-Dow for payment of the alleged outstanding balance of the
purchase price, alternatively for cancellation of the
agreement and
the return of
Juliette
.
More than five years later, the C-Craft/Cooper action is still
pending. In the present case, 2012 and early 2013 seem to have
been
taken up with discovery and trial particulars. Laubscher then engaged
his current attorneys and counsel, through whom an amended
plea was
delivered on 2 April 2013. In effect, Laubscher withdrew his previous
averments indicative of a partnership. What he now
pleaded was that
in June 2006 Cameron-Dow agreed to lend him an amount sufficient to
enable him to acquire
Juliette
,
that Basic Blue would conduct the fishing operations and that
Laubscher was to repay the loan ‘as soon as possible from
the
proceeds of the aforesaid fishing operations’. This version,
which lacks any commercial plausibility, I reject as false.
[72]
Laubscher claimed in
evidence that his original plea was drafted by his erstwhile counsel
and attorneys without consultation with
him and that he first saw it
several months later. Only in consultation with his new attorney did
it become apparent that no partnership
agreement had ever
crystallised. Again, I do not find this explanation credible.
The agreement proved
[73]
I have set out in para
36 above the agreement I find proved. Subject to the illegality
defence, I do not think the agreement’s
enforceability is
affected by the fact that the fishing operations were to be conducted
by Basic Blue. Although the latter was
cited as the fourth defendant,
it is unnecessary to find that it was actually a party to the
agreement between Cameron-Dow and
Laubscher. The latter was the 70%
member of Basic Blue. In that capacity he had an indirect entitlement
to 70% of Basic Blue’s
net profit. As between himself and
Cameron-Dow, Laubscher was obliged to ensure that 40% of Basic Blue’s
net profit (to the
extent that this represented profit from
Juliette’
s
operations) was paid to Cameron-Dow. This he could do by obtaining a
distribution from Basic Blue to himself of a sufficient amount
to
ensure that Cameron-Dow received his due.
[74]
Where one of two
partners has the conduct of partnership business, such person has an
obligation in law to account to his partner
in respect of the
business, at the latest upon dissolution (Voet
Commentary
on the Pandects
17.2.11;
LAWSA
2
nd
Ed Vol 19 para 296;
Tshabalala
& Others v Tshabalala & Others
1921
AD 311
at 318;
Purdon
v Muller
1961 (2)
SA 211
(A) at 231H-232;
Countertrade
Establishment (Pty) Ltd v EBN Trading (Pty) Ltd
1995
(1) SA 762
(N) at 770E-H). Where a ship is co-owned, a court
exercising admiralty jurisdiction will require the managing owner to
render an
account of the ship’s operations and has the power to
settle the account. The co-owner is entitled to complete a disclosure

from the managing owner (Meeson
op
cit
para 2-041 and
2-043).
[75]
I am thus satisfied
that Laubscher is obliged to render an account of the operations
conducted on
Juliette
and to pay
Cameron-Dow so much as is owing to Cameron-Dow from the profits of
such operations. (Cameron-Dow’s right to share
in the proceeds
of the partnership asset, viz
Juliette
,
will not involve payment by Laubscher to Cameron-Dow but a division
of the net sale proceeds held by the Registrar in the
Juliette
fund account.)
[76]
Although the operations
which the parties had directly in mind were tuna pole fishing
operations, they must have intended that all
commercial operations
conducted by
Juliette
while they were co-owners would be within the scope of the
partnership. The accounts to be prepared by Laubscher must thus
include
the snoek fishing trip of July 2007, the salvage operation
conducted in August 2008 and any other operations conducted by
Juliette
.
(
Juliette
was one of a number of boats engaged during August 2008 in the
salvaging of logs which came adrift in Table Bay Harbour following
a
storm. Cameron-Dow drafted the salvage contracts for
Juliette
and the other boats.)
[77]
Although the parties
envisaged the acquisition of a second boat in which they would be
jointly interested, this did not come to
fruition. While the delay in
Juliette’s
delivery may have played some part, the main reason is that Laubscher
failed to render any account to Cameron-Dow regarding
Juliette’
s
operations or to make
Juliette’
s
profits available for funding the second boat. Cameron-Dow was thus
entitled to bring matters to a head by issuing summons and
having
Juliette
arrested. This inevitably signalled the termination of the
partnership, subject to a proper accounting.
The
illegality defence
[78]
Laubscher made the
following allegations in his amended plea regarding the illegality
defence.
(i) In terms of the MLR Act the Minister published
a General Policy on the Allocation and Management of Long Term
Commercial
Fishing Rights (‘the General Policy’) and a
Fishery Specific Policy for the Management and Allocation of
Commercial
Fishing Rights in the Tuna Pole Fishery (‘the Tuna
Policy’).
(ii) The broad objectives of the policies were the
management of fishing resources and equitable allocation to suitable
stakeholders,
particularly previously disadvantaged persons and
fishermen with a genuine interest in fishing.
(iii) The application process was competitive and
aimed at identifying the best applicants.
(iv) The submission of false information or
non-disclosure was a ground for refusing or taking away rights. It
was a criminal
offence to tell deliberate falsehoods.
(vi)  An applicant could be excluded if he
submitted more than one application.
(vii) The Department wanted to know who the ‘real
beneficiaries’ of the fishing rights were, and adopted the
‘follow
the buck’ principle.
(viii) Fishing vessels had to be registered with
SAMSA and the Department in order to be nominated as a catching
vessel. Unless
the applicant was the owner, the applicant had to
furnish full and truthful details about the catching agreement and
ownership
of the vessel.
(ix) If the agreement alleged by Cameron-Dow
existed, he – acting as the attorney for Laubscher and/or Basic
Blue when
they applied for fishing rights and made related
applications – failed to disclose his interest in such rights
and deliberately
caused his client to file false declarations
regarding
Juliette’s
ownership and the true
beneficiaries of the rights.
(x) Cameron-Dow’s conduct was contrary to the
duties of an attorney, was against public policy and good morals, and
was
illegal. His conduct was aggravated by the fact that he had
interests in other fishing rights and vessels at all material times.
(xi)
The alleged partnership is thus illegal and unenforceable.
[79]
Laubscher led no
evidence in support of the illegality defence. Mr Walther in argument
relied on the General Policy and Tuna Policy
as annexed to a notice
of objection filed by Laubscher to an amendment with which
Cameron-Dow did not proceed.
[16]
The annexed General Policy was described as ‘Draft General
Policy: May 2005’. I queried the evidential basis on which
I
was entitled to have regard to these annexures. Mr Walther said that
he understood them to have been published in the
Government
Gazette
. After
completion of argument he delivered to me a copy of the General
Policy as published in the Government Gazette in 2005 as
Schedule A
to the ‘Invitation To Apply for Rights to Undertake Commercial
Fishing for Hake Longline, West Coast Rock Lobster
(Offshore), Squid,
Seaweed, Tuna Pole and Demersal Shark’. Those parts of the
draft General Policy to which Mr Walther referred
in argument are
identical to the General Policy as published. In terms of s 5(1)
of the Civil Proceedings Evidence Act I must
take judicial notice of
the General Policy. Since Mr Walther in argument did not rely on the
Tuna Policy, I shall not concern myself
with it though it too seems
to have been published as a schedule to the above Invitation.
[80]
The evidence of
applications made by Basic Blue is confined to its application for
tuna pole commercial rights in 2005 (awarded
on 28 February 2006) and
the application made in February 2007 to increase
Juliette’
s
crew from 6 to 14. Of these two applications, only the one of
February 2007 was actually adduced as a documentary exhibit.
[17]
One knows that Basic Blue must have applied, prior to February 2007,
to switch its catching boat from
Wicked
Lady
to
Juliette
but no evidence regarding that application was adduced.
[81]
Basic Blue applied for
and was awarded its commercial tuna pole fishing rights before any
agreement was concluded between Cameron-Dow
and Laubscher. The vessel
specified in the application, as one knows from the Department’s
award, was
Wicked
Lady
. Apart from
the fact that the application itself was not adduced as an exhibit,
there is no reason to suppose that Laubscher made
any false
statements in the application.
[82]
Basic Blue’s
application to switch its catching boat from
Wicked
Lady
to
Juliette
,
presumably made in the latter part of 2006, was not adduced as an
exhibit. There is no evidence that anything said in it was false.
[83]
This leaves Basic
Blue’s application of February 2007 for an ‘increased
effort’. I find it difficult to understand
on what basis an
agreement concluded in mid-2006 could be rendered unlawful by what
was done in February 2007, unless the agreement
could only be carried
out by unlawful means or unless it was alleged and proved that the
parties, when they concluded the agreement,
intended to carry it out
by unlawful means (as to which, see
Claasen
v African
Batignolles
Construction (Pty) Ltd
1954
(1) SA (O) at 556H-557A;
Kartsein
v Moribe
&
Others
1982 (2) SA
282
(T) at 291C-G);
Wypkema
v
Lubbe
[2007]
4 All SA 1224
(SCA) para 17 – a line of authority to which no
reference was made in argument).
[84]
I do not think the
agreement alleged by Cameron-Dow was one which could not be carried
out except by unlawful means nor did Laubscher
so allege. Basic Blue
already held its tuna pole commercial fishing rights by the time
Cameron-Dow and Laubscher concluded their
agreement. I think it may
be accepted on the evidence that they did not intend to ask the
Department to transfer the commercial
fishing rights from Basic Blue
to the partnership or to approve the partnership arrangement but I am
not persuaded that the MLR
Act as read with the General Policy
required them to seek transfer or approval. Their arrangement was not
intended to affect the
identity of the entity which held the fishing
rights (Basic Blue).
[85]
Cameron-Dow’s
interest in Basic Blue’s profits, by virtue of his agreement
with Laubscher, was a less direct interest
than he would have held
had he become a 40% member of Basic Blue, so it is legitimate to ask
whether Cameron-Dow could have become
a 40% member of Basic Blue
without getting the Department’s approval. The answer in my
view is yes. Section 21(1) states
that subject to the provisions of
the Act a commercial fishing right may be leased, divided or
otherwise transferred. Although
I was not referred to the relevant
regulations, I shall assume for purposes of argument that such lease,
division or transfer may
only occur by following a prescribed
process. But on the face of it a fishing right is not leased, divided
or transferred merely
because a 70% member of the entity which holds
the fishing right agrees to transfer a 40% member interest to a
person who was not
a member of the entity when the latter acquired
its fishing right. That this is the view of the Department is
confirmed by clause
12 of the General Policy which states, after
referring to s 21(1), that if a member of a close corporation or
company alienates
some or all of his interest or shares but the
fishing right remains with the same entity, approval for the transfer
does not generally
have to be obtained. The exception is if the
transfer results in a change of control of the juristic entity. The
clause states
that in the case of a listed public company the sale of
more than 35% of the shareholding requires approval. The necessary
implication
is that in other instances control bears its ordinary
meaning, namely the power to exercise the majority of votes at a
meeting
of members, a power which – absent any special
arrangements – is conferred by a holding of more than 50% of
the member’s
interest or shares (see
Inland
Revenue Commissioners v J
Bibby
and Sons
[1945]
1 All ER 667
(HL) at 670F-G and 671A;
Barclays
Bank Ltd v Inland Revenue Commissioners
[1961]
AC 509
at 523-524 and 534;
Secretary
of State for Employment v Chapman & Another
[1989]
ICR 771
(CA) at 775C-G and 778F-G).
[86]
If Cameron-Dow could
without the Department’s approval have obtained a 40% member
interest in Basic Blue, I do not think it
was unlawful for him to
obtain without the Department’s approval a less direct interest
in 40% of Basic Blue’s profits
by way of an agreement with
Basic Blue’s 70% member.
[87]
The MLR Act and the
General Policy place emphasis on the transformation of the fishing
industry. Even if there were no change in
control of an entity
holding the fishing rights, a change in the member interest or
shareholding could result in a change in the
transformation profile
of the entity. I was not referred to the statutory provisions if any
which prevent this sort of abuse. It
is enough to say that in the
present case the agreement between Cameron-Dow and Laubscher was not
intended to alter, and did not
alter, the transformation profile of
Basic Blue. Their agreement did not deprive Basic Blue’s two
minority members (who collectively
held 30%) of such rights as they
otherwise had to participate in Basic Blue’s management and
profits.
[88]
As to ownership of
Juliette
,
the MLR Act and the General Policy do not prohibit co-ownership of
boats used by the holders of commercial fishing rights. To
the
contrary, the expression ‘local fishing vessel’ is
defined in s 1 of the MLR Act as meaning a fishing vessel

registered in South Africa and which is ‘wholly owned and
controlled by one or more South African persons’, necessarily

implying that there can be co-ownership. Cameron-Dow and Laubscher
were and are ‘South African persons’ as defined
in s1.
(In this respect there may be a difference between who may hold
commercial fishing rights on the one hand and who may own
local
fishing vessels on the other. Clause 7.2 of the General Policy
reflects a view by the Department that a partnership cannot
apply for
and be allocated commercial fishing rights. This is based on the fact
that s 18(3) of the MLR Act provides that
only ‘South
African persons’ may hold commercial fishing rights and that
s 1 defines ‘South African person’
as covering only
South African citizens and companies, close corporations and trusts
controlled by South African persons. It is
unnecessary for me to
express an opinion on the correctness of this view.)
[89]
As partners,
Cameron-Dow and Laubscher were intended to be and were in fact
co-owners of
Juliette
.
It was only in February 2007 that it became necessary for Basic Blue
to make an application involving information about its right
to use
Juliette
.
It is not to Cameron-Dow’s credit that he participated with
Laubscher in submitting an application which, with reference
to the
attached catching agreement, represented that Laubscher alone was the
owner. But I am not satisfied that when they concluded
their
partnership agreement in mid-2006 there was an intention to make
misrepresentations about
Juliette’s
ownership. And I am far from satisfied that it would have made any
difference to the Department if the catching agreement had described

Laubscher and Cameron-Dow as co-owners of
Juliette
.
[90]
I thus reject the
illegality defence.
The
relief on the main claim
[91]
On the main claim
Cameron-Dow seeks: (i) payment from the partnership and in rem
against
Juliette
of R1,6 million allegedly ‘lent’ by him to the
partnership; (ii) payment from the partnership and in rem
against
Juliette
of R100 000 as cessionary of Steven’s claim for money lent
to the partnership; and (iii) the rendering of an account
by
Laubscher and payment of any amount found owing thereon to
Cameron-Dow, such payment to be made by the partnership and Laubscher

and in rem by
Juliette
jointly and severally.
[92]
Cameron-Dow’s
characterisation of the money he paid in connection with
Juliette’s
acquisition as a loan requires comment. He was a 40% member of the
partnership. A partnership has no juristic personality apart
from its
members (
Michalow NO
v Premier
Milling
Co Ltd
1960 (2) SA
59
(W) at 61D-F;
LAWSA
op cit para 277). A
person cannot lend money to himself nor is it Cameron-Dow’s
contention, in the main claim, that he lent
the money to Laubscher
personally. It is not unusual for partners to speak of ‘lending’
money to the partnership but
from a practical point of view what they
usually mean is that such money, unlike a normal capital
contribution, is to be repaid
as a first charge from the partnership
assets or profits, prior to the return of ordinary capital
contributions and prior to any
division of residual assets and
profits in accordance with their agreed sharing ratio (cf
Schlemmer
v Viljoen & Andere
1958
(2) SA 287
(T) at 287E-G;
LAWSA
op cit para 321;
Banks
Lindley &
Banks on Partnership
19
th
Ed paras 17-05, 19-06, 22-05 and 25-43). In my view the monies which
Cameron-Dow and Laubscher put up (in their language as ‘loans’)

were contributions to the partnership with this particular character.
I shall refer to them as ‘advances’. The advances
were
put at the risk of the partnership business. For example, if
Juliette
had been lost without insurance and before any profit was made, there
was no debtor whom Cameron-Dow could sue for repayment of
his money.
What the parties intended, in describing the monies as loans, was
that those amounts would be repaid to them before
the division of
profits in the 40:60 ratio.
[93]
It is thus not possible
to make a simple order for repayment of the advances as distinct
relief. The advances must feature in the
account to be drawn and
debated. This accords, on my understanding, with the statement in
Lindley & Banks
on Partnership
supra
that a partner has no independent cause of action in respect of an
advance made to the partnership though in a settling of
accounts the
advance must be satisfied in priority to ordinary capital (para 25-43
footnote 44, citing
Green
v Hertzog
[1954] 1
WLR 1309).
In
Green
Goddard CJ, with
whom the other members of the court concurred, said that where a
partner ‘lends’ money to the partnership
‘there are
no creditors or debtors in the ordinary acceptance of those terms’
because he is ‘advancing some of
that money to himself’.
Goddard CJ continued (at 1312):
‘
There
is no common law claim here for money lent: it is a loan by one
partner to the partnership; it is money lent to the partnership,
and
section 44(2) of the Partnership Act, 1890, shows how that money is
to be reclaimed and dealt with. There must be a taking
of the
accounts, and if it be shown that there is enough money in the
partnership accounts to repay the plaintiff the money that
she has
advanced, or some of it, after the creditors of the partnership have
been paid, she will get that money in priority to
the others.’
[94]
The English Partnership
Act of 1890 by and large codified the existing law. In
Green
Goddard CJ referred
to
Richardson v Bank
Of England
(1838) 4
My & Cr 165 where Cottenham LC said the following in relation to
monies ‘lent’ by a partner to the partnership
(at
171-172):
‘
But
though these terms “creditor” and “debtor”
are so used, and sufficiently explain what is meant by the
use of
them, nothing can be more inconsistent with the known law of
partnership than to consider the situation of either party
as in any
degree resembling the situation of those whose appellation has been
so borrowed. The supposed creditor has no means of
compelling payment
of his debt; and the supposed debtor is liable to no proceedings
either at law or in equity … . The supposed
creditor’s
debt is due from the firm of which he is a partner; and the supposed
debtor owes the money to himself in common
with his partners; and,
pending the partnership, equity will not interfere to set right the
balance between the partners ….
But if, pending the partnership,
neither law nor equity will treat such advances as debts, will it be
so after the partnership has
determined, before any settlement of
account, and before the payment of the joint debts or the realisation
of the partnership estate?
Nothing is more settled than that, under
such circumstances, what may have been advanced by one partner, or
received by another,
can only constitute items in the account …
.’
[95]
Since the agreement
between the parties was that the advances together with interest
would be repaid as a first charge, the profits
together with the
proceeds from the sale of
Juliette
must, in the account, first be applied to repay such sums.
[96]
Although the detail of
the income and expenditure has been deferred for later determination,
the trial was conducted on the basis
that I must determine at this
stage the amount ‘lent’ by Cameron-Dow to the
partnership. I must thus rule on the extent
of his advances. Mr van
Embden in argument accepted that certain of the amounts set out in
Cameron-Dow’s pleadings and trial
particulars had not been
proved. I confine myself to the schedule of payments on which he
relied in argument. I have mentioned
most of the payments in my
survey of the evidence and shall thus not elaborate except where
necessary.
[97]
I am satisfied on a
balance of probability that Cameron-Dow advanced the following
amounts (totalling R1 012 576,17) on
the dates indicated
and that they should be reflected in the account together with
interest from the relevant dates:
(i) R100 000 on 29 June 2006;
(ii) R500 000 on 7 July 2006;
(iii) R300 000 on 31 July 2006;
(iv) 40 000 on 19 December 2006;
(v) R42 406,68 on 2 February 2007;
(vi) R5 650 on 6 March 2007;
(vii) R17 000 on 3 April 2007;
(viii) R7 519,49 on 7 May 2007.
[98]
The interest to be
credited to Cameron-Dow in respect of the above advances must be at
the rate charged from time to time by Investec
on his mortgage bond.
[99]
Regarding the payment
of R6877 to Pertech on 10 September 2007, Cameron-Dow said in
evidence that he could not be sure it related
to
Juliette
.
I thus disallow it.
[100]
I am satisfied that
Cameron-Dow made two further payments reflected on the schedule,
namely R20 000 and R15 000 to C-Craft
on 10 May 2007 and 6
June 2007 respectively (the latter erroneously recorded in Mr van
Embden’s schedule against the date
1 March 2007). I am not
satisfied, however, that they were made with the express or implied
authority of his partner. It is common
cause that Laubscher objected
to the partnership’s making any contribution towards the
replacement of
Juliette’s
propeller. Since the propeller incident occurred on 16 May 2007, and
since Cameron-Dow mentioned an amount of R15 000 as being
his
contribution in respect of the replacement of the propeller, the
payment of 6 June 2007 was for his own account. Although the
oral
evidence suggested only one instance where Laubscher objected to
payment, Cameron-Dow’s memorandum of 17 May 2007 recorded
that
Cameron-Dow’s payment of R20 000 to C-Craft on 10 May 2007
was a loan by Cameron-Dow to Cooper because Laubscher
was not happy
for it to be paid on behalf of the partnership. It thus appears that
Laubscher must have objected to both of these
payments. At any rate,
Cameron-Dow has not proved on a balance of probability that these two
amounts are properly to be brought
into account in the partnership.
[101]
Mr van Embden’s
schedule reflects five payments totalling R89 500 made by
Cameron-Dow to Laubscher personally (R30 000
on 12 March 2007,
R23 000 on 3 April 2007, R4000 on 5 May 2007, R12 500 on 28
September 2007 and R20 000 on 30 September
2007). In a letter of
demand to Laubscher dated 29 July 2009
[18]
Cameron-Dow’s attorney (a colleague at his firm) recorded his
instructions as being that these amounts were lent to Laubscher
by
way of a separate agreement. In Cameron-Dow’s memorandum of 11
October 2007 he said, with reference to the last two payments

totalling R32 500, that he was assuming that they would be
treated as a personal loan to Laubscher but that he would be happy
to
regard it as a loan to the partnership if Laubscher preferred. There
was no evidence of a response from Laubscher. Cameron-Dow’s

oral testimony does not persuade me that these payments were advances
or contributions to the partnership. They will thus not feature
in
the partnership accounting. If they are recoverable, it would have to
be by way of the alternative claim.
[102]
This leaves the payment
of R100 000 paid by Steven’s entity, Twoline, to C-Craft
on 19 December 2006. I am satisfied
that this amount related to
Juliette
.
However, Cameron-Dow’s memoranda of 18 January 2007 and 24
January 2007 indicate that only R50 000 was a loan by Twoline
to
the partnership. The other R50 000 was a part-payment in
reduction of Twoline’s indebtedness to Laubscher for the

skippering of
Highlander
.
Since there was no response to the memoranda, I must assume that all
parties accepted this treatment. This means that, to the
extent of
R50 000, Twoline’s payment to C-Craft was treated as a
payment to Laubscher for skipper’s fees which
the latter
contributed to the partnership by allowing it to be paid to C-Craft.
It follows that, in addition to the sum of R300 000
advanced by
Laubscher on 4 August 2006, he contributed a further R50 000 on
19 December 2006.
[103]
Twoline’s loan of
R50 000 to the partnership was not a capital contribution by a
partner. It gave rise to a creditor/debtor
relationship between
Twoline and the partnership. Cameron-Dow’s evidence of the
cession of this claim was not altogether
satisfactory but it is
probable that by the time summons was issued Steven intended that his
father should have the right to pursue
the claim. The difficulty is,
however, that Cameron-Dow’s pleaded case is that Steven
personally lent the money to the partnership
and that it was Steven
who purported to cede the claim to him. The contemporaneous
documentation, and in particular Cameron-Dow’s
memorandum of 24
January 2007, indicates that it was Twoline which lent the money. In
the absence of an amendment (which might
in turn be met by a defence
of prescription), I do not think I can uphold Cameron-Dow’s
claim for repayment of the R50 000
lent by Twoline.
[104]
It is common cause that
Cameron-Dow received repayments totalling R164 000 as follows:
(i) R12 000 on 1 June 2007;
(ii) R50 000 on 1 November 2007;
(iii) R25 000 on 3 December 2007;
(iv) R12 000 on 2 January 2008;
(v) R15 000 on 1 February 2008;
(vi) R30 000 on 11 March 2008;
(vii) R20 000 on 3 May 2008.
[105]
Cameron-Dow’s
primary pleaded case is that these repayments were received from the
partnership (ie out of partnership assets)
whereas Laubscher,
consistent with his denial of the partnership, claimed that they were
repayments by him personally. Although
I have concluded that
Cameron-Dow did, to the extent of R89 500, lend funds to
Laubscher personally, I cannot find that any
of the repayments
totalling R164 000 related to the personal loans. It follows
that Cameron-Dow’s partnership advances
together with interest
must, in the account, be reduced as at the dates and by the amounts
listed in the preceding paragraph.
Other
matters concerning the account
[106]
Given the form taken by
the pleadings, I have not been asked to determine the advances made
by Laubscher nor, on the state of the
evidence, am I in a position to
do so.
[107]
It is common cause that
Laubscher paid R300 000 into Cameron-Dow’s firm’s
trust account on 4 August 2006. In the
subsequent dealings between
the parties this was accepted as his ‘loan’ to the
partnership, being of the same nature
as the ‘loans’ made
by Cameron-Dow. It was put to Cameron-Dow in cross-examination that
only R218 000 of Laubscher’s
payment had been applied to
Juliette
.
This appears to be the position if one has regard to Cameron-Dow’s
memorandum of 18 September 2006. The memorandum is at
odds with what
I understood to be the imputation in cross-examination, namely that
Cameron-Dow had acted improperly in relation
to his trust account. He
was open about the fact that only R218 000 had been applied to
Juliette
.
Nevertheless, Cameron-Dow’s evidence was that the payment of
R300 000 was credited to himself, not Laubscher, in his
firm’s
trust accounts. If the balance of R82 000 was not refunded to
Laubscher (and Cameron-Dow did not suggest it was),
the most
plausible construction of the facts is that to the extent of R82 000
capital funding previously provided by Cameron-Dow
was substituted by
capital funding from Laubscher. This would be in line with the
agreement that Laubscher would contribute R300 000
to
Juliette’s
acquisition and Cameron-Dow the balance.
[108]
On this basis, the
balance of Cameron-Dow’s capital advances plus interest as at 4
August 2006 must be reduced by an amount
of R82 000. Laubscher,
conversely, is entitled to be credited with a capital advance of
R300 000 as at that date. Laubscher
is entitled to a further
credit of R50 000 as at 19 December 2006, arising from the
part-settlement of his skipper’s
fees paid directly by Twoline
to C-Craft on behalf of the partnership. I think it appropriate to
make a provisional ruling that
the account include at least these
sums as advances made by Laubscher. However, the evidence suggests
that Laubscher may have made
other advances as well. He may also have
received repayments. These matters will need to to be dealt with in
the account and debatement
thereof.
[109]
Like Cameron-Dow,
Laubscher’s advances must be credited with interest as from the
relevant dates at the rate charged from
time to time by his bank on
his mortgage bond.
[110]
Since I cannot find
that the catching agreement was a sham, the account should be
prepared on the basis that the catching agreement
was operative. For
reasons I have explained, this should not make any practical
difference to Cameron-Dow but Laubscher might be
prejudiced if the
catching agreement were disregarded. This is because Laubscher, as a
partner in the ownership of
Juliette
,
is entitled to 60% of the net profit from the rent whereas he might
effectively only benefit from 30% of Basic Blue’s profits,

given his obligation to account to Cameron-Dow for 40% of the fishing
profits and his empowerment partners’ 30% member interest.
[111]
The rent paid or
payable by Basic Blue, equal to 30% of the total value of catches,
will thus be a separate stream of income. Only
such expenses as Basic
Blue was not obliged to meet under the catching agreement would be
deducted in arriving at the profit from
this income stream.
[112]
The other income stream
is from Basic Blue’s fishing and other operations in relation
to
Juliette
.
Subject to the exception mentioned hereunder, all expenditure
actually and bona fide incurred by Basic Blue in relation to her

various operations should be recognised in the account.
[113]
The one exception
concerns any management or other fees paid to Laubscher over and
above his 15% skipper’s fees. It appears
that one of the issues
which might become contentious between the parties is whether
allowance should be made for Laubscher’s
time in getting
Juliette
seaworthy, particularly over the period January to April 2007.
(Cameron-Dow, of course, also spent some time on the affairs of
the
partnership.) I indicated to the parties during the course of the
hearing that it would be desirable to determine at this stage
any
contentious points of principle relating to the account, ie those
which did not turn on expert evidence or quantification detail.

Whether in principle Laubscher is entitled to compensation for time
spent is one such question. However since counsel did not address
the
question in argument I prefer not to rule on it, even provisionally.
I thus leave open whether Laubscher can bring into account
fees
(other than the 15% skippering fee) actually paid to him by Basic
Blue or an allowance for time spent on the affairs of the

partnership.
[114]
In considering this
question the parties might nevertheless wish to bear in mind that in
English law a contract of partnership ordinarily
excludes any implied
agreement for the payment of services rendered for the firm by any
one of its members, from which it follows
that one partner cannot
charge another with compensation for his own trouble in conducting
the partnership business. The mere fact
that it would be reasonable
to compensate him is not sufficient (
Lindley
& Banks on Partnership
supra
para 20.43). This is now reflected in s 24(6) of the Partnership
Act of 1890 (and see
Medcalf
v Mardell & Others
[2000]
EWCA Civ 63
paras 79-83).
[115]
The general rule is the
same in our law (Visser et al
Gibson
South African Mercantile & Company Law
8
th
Ed p 248). In
LAWSA
2
nd
Ed Vol 19 para 292 the learned authors say that, in the absence of an
agreement for compensation, each partner is expected to perform
all
the duties contemplated by the contract without any fee or reward.
They add, however, that if a partner
‘
has
performed special work beyond that performed by the others, and which
was not contemplated as part of his duties under the contract,
he
will be entitled to claim remuneration for his services’.
They
refer in that regard to Voet 17.2.19 and
Liquidators
of Grand Hotel and Theatre Co
v
Haarburger & Others, and Fichardt & Daniels
1907
ORC 25
where Maasdorp CJ in turn cited
Britannia
Gold Mining Co v Yockmonitz
(1890)
7 SC 218.
In the latter case De Villiers CJ said that if a partner
has performed special work beyond that performed by his co-partners
and
not contemplated as part of his duties under the contract of
partnership, ‘and
a
fortiori
if his
partners have undertaken to pay him for such work’, there is
‘nothing inconsistent with the fiduciary character
of the
contract that he should accept such payment’ (at 226).
In that case, which, like
Grand
Hotel
, concerned a
company’s directors rather than partners, there was an
agreement for the payment of brokerage. Voet 17.2.19
states that
generally a partner’s share of profits is regarded as a
sufficient reward for his services but that a fee can
be judicially
awarded to a partner who ‘handles and furthers the affairs of
the partnership mainly or solely, where he was
not liable by covenant
to render such service beyond the others’ (Tr Gane).
[116]
Here there was express
agreement that Laubscher was entitled to charge the partnership a 15%
skippering fee. There was no evidence
of an agreement for the payment
of other remuneration. If, despite the absence of such agreement,
South African law would, depending
on the particular facts of the
case, allow Laubscher a right to reasonable remuneration for
additional services, the question briefly
discussed at the beginning
of this judgment as to whether South African or English law applies
to the partnership may become relevant.
[117]
I have said that the
advances plus interest made by the parties must feature in the
account to be drawn and will enjoy priority
in the distribution of
partnership assets and profits. I was not addressed on what will
happen if the assets and profits are insufficient
to cover the
advances plus interest. One possibility is that the entitlement of
Cameron-Dow and Laubscher must abate pro rata in
accordance with the
amounts of their advances plus interest. Another possibility is that
the partners must contribute to make good
the loss in accordance with
their profit-sharing ratio (cf
Lindley
and Banks
supra
para 25-46 read with para 20-05). I prefer, in the absence of
argument, to express no opinion on these and other possibilities,

particularly since the eventuality of a loss on the advances may not
arise.
The
alternative claim
[118]
Given my findings on
the main claim, the alternative claim is relevant only in respect of
the five payments to Laubscher totalling
R89 500. That these
payments were made and that Laubscher became indebted to Cameron-Dow
in respect thereof was satisfactorily
proved.
[119]
Laubscher raised
several unmeritorious defences based on the
National Credit Act 34 of
2005
. He pleaded that Cameron-Dow had failed to register as a credit
provider in terms of s 40 of the Act
[19]
and that he had failed to comply with s 129 and 130 of the Act.
Cameron-Dow only made loans to the extent of R89 500,
beneath
the threshold specified in s 40. In respect of these loans,
Cameron-Dow indeed complied (to the extent necessary)
with ss 129
and 130 (see his firm’s letter of demand dated 29 July
2009
[20]
).
But in any event, I do not think the Act applied at all. In terms of
s 4(1) the Act only applies between parties dealing
at arm’s
length. Although these particular loans were not partnership
contributions, they were made by one partner to another
in the
context of a partnership relationship. Cameron-Dow was not and is not
in the business of lending money. There is not even
evidence that
interest was specifically discussed in relation to these personal
loans, though the understanding may have been that
they would attract
interest in the same way as the capital contributions.
[120]
Laubscher’s main
defence is that the alternative claim has prescribed. The amendment
of the particulars of claim to include
the alternative claim was only
made on 16 February 2015. Mr van Embden did not try to persuade me
that the alternative claim did
not seek to enforce a ‘debt’
different from the main claim. Although the attitude of our courts
may have become more
benevolent to creditors in this regard (as to
which, see
Sentrachem
Ltd v Prinsloo
1997
(2) SA 1
(A);
CGU
Insurance Ltd v
Rumdel
Construction
(Pty) Ltd
2004 (2)
SA 622
(SCA);
Rustenburg
Platinum Mines v Industrial Maintenance Painting Services
[2009]
1 All SA 275
(SCA);
Aeronexus
(Pty) Ltd v Firstrand Bank Ltd t/a Wesbank
[2011]
ZASCA 21
;
Imperial
Bank Ltd v Barnard NO & Others
2013
(5) SA 612
(SCA)), I have no doubt that a claim based on a
debtor/creditor relationship arising from loan is substantially
different from
a claim which a partner enjoys to have partnership
assets and profits applied in the first instance to repay capital
advances made
by the partners.
[121]
Since Cameron-Dow
through his attorney made written demand for the repayment of the
personal loans on 29 July 2009, the ‘debts’
he sought to
enforce in the amended particulars of claim became ‘due’
for purposes of prescription by not later than
that date.
Self-evidently the debts had prescribed long before 16 February 2015
unless there was an intervening interruption of
prescription.
[122]
The pleadings on
prescription are not satisfactory. If Cameron-Dow intended to rely on
interruption, he should have dealt with this
in his amended
replication since he bore the onus to allege and  prove
interruption (
Anglorand
Securities Ltd v Mudau & Another
[2011]
ZASCA 76
para 16). The omission might be attributable to the fact
that the pleadings on prescription were filed during the course of
the
trial and did not receive as much thought as they required.
Laubscher himself, in his amended plea, unnecessarily anticipated and

sought to refute one possible act of interruption.
[21]
It might thus be unfair to Cameron-Dow to uphold the defence of
prescription simply because of his failure to plead interruption.
[123]
Nevertheless, I am
satisfied that none of the acts of purported interruption on which Mr
van Embden relied in argument (supposed
acknowledgements of liability
as contemplated in s 14 of the Prescription Act) meets the test
laid down by the law.
[124]
Mr van Embden argued
that the first interruption occurred on 23 July 2010 by way of
Laubscher’s original plea. I have already
summarised the
relevant paragraphs. Although Laubscher alleged there that all the
monies contributed by Cameron-Dow had been personal
loans to him, he
did not admit an existing indebtedness in respect of those loans. His
contention seems to have been that Cameron-Dow,
by causing
Juliette
to be arrested in August 2009, had made further performance
impossible. It is not enough that Laubscher admitted the conclusion

of a loan agreement. What was required, in order for there to be an
interruption in terms of s 14, is that he should have

acknowledged a liability which still existed (
Anglorand
supra para 15 and
cases there cited) in terms which excluded any defence as to the
debt’s existence (
Road
Accident Fund v Mothupi
2000
(4) SA 38
(SCA) para 38).
[125]
Mr van Embden argued,
along similar lines, that there were acknowledgements of liability in
Laubscher’s replying affidavit
in Case AC 70/2010 filed on 23
July 2010 and in his reply of 26 April 2013 to Cameron-Dow’s
request for further particulars
for purposes of trial. The replying
affidavit seems to me to be no more an acknowledgement of liability
than the original plea.
The trial particulars come closest to
containing an acknowledgement – in para 32 Laubscher admitted
borrowing money from
Cameron-Dow and said he was uncertain about the
total amount payable, and in para 34 he admitted that he was liable
to repay any
balance proved to be owing in respect of the monies
advanced by Cameron-Dow to him.
[22]
These answers were repeated in Laubscher’s amplified trial
particulars of 21 August 2013.
[23]
It is unnecessary to decide, however, whether the trial particulars
amounted to an acknowledgement of liability, because by 26
April 2013
the relevant debts had already prescribed. If a debt has prescribed,
an acknowledgement does not revive it (
Desai
NO v Desai & Others
[1995] ZASCA 113
;
1996
(1) SA 141
(A) at 147G-H). An acknowledgement might in appropriate
circumstances be accompanied by a new contractual undertaking to pay
but
that was not alleged or proved here.
[126]
Laubscher’s
defence of prescription to the alternative claim thus succeeds and
Cameron-Dow’s claim for repayment of
the amounts totalling
R89 500 must be dismissed.
Costs
[127]
Cameron-Dow has had
substantially greater success than Laubscher, measured by value and
by time devoted to the issues at trial.
Laubscher has succeeded in
warding off the ceded claim of R100 000 and has prevailed in
regard to the personal loans totalling
R89 500. Certain modest
amounts initially included in Cameron-Dow’s alleged advances to
the partnership have fallen
by the way. I think provisionally that
Laubscher should be ordered to pay 75% of Cameron-Dow’s costs
associated with the
issues determined by his judgment. Because I have
not heard expert evidence concerning the detailed content of the
account, the
costs order will at this stage exclude such costs but I
shall make provision for them to be claimed later.
[128]
Since counsel could not
fairly have been expected to address costs on all  permutations,
both parties will be entitled to seek
a reconsideration of the costs
order upon notice in accordance with the order below.
Order
[129]
I make the following
order:
(1) All references in this order to paragraphs are to
paragraphs in the above judgment.
(2) Paras (6) to (9), (11), (12), (15) and (16) of this
order are made provisionally subject to para (18) below.
(3) The second defendant is ordered to render an account
to the plaintiff of all the operations conducted on or by way of
Juliette
over the period June 2006 until the arrest of
Juliette
on 20 August 2009 (‘the account’).
(4) The account shall reflect the advances made by the
plaintiff to the partnership as set out in para 97 together with
interest
as set out in para 98. The plaintiff must, within two weeks
of this order, furnish to the second defendant the interest rates
contemplated
in para 98.
(5) The plaintiff’s advances plus interest as
calculated in terms of (4) must be reduced by the amounts and as at
the dates
listed in para 104.
(6) The plaintiff’s advances plus interest as
calculated in terms of (4) must also be reduced by R82 000 as at
4 August
2006.
(7) The account shall reflect the advances made by the
second defendant to the partnership as including those set out in
para 108
together with interest as set out in para 109. If the second
defendant claims to have made any further advances, he shall be
entitled
to include them in the account, together with all repayments
received by him.
(8) The account must comply with the principles set out
in paras 76 and 110-112.
(9) The net proceeds from the sale of
Juliette
together with interest thereon as held by the Registrar in the
Juliette
fund account (‘the net proceeds’), and
the net profit from the ownership of
Juliette
and the
operations conducted on or by way of her over the period June 2006 to
August 2009 (‘the net profit’), must
be reflected in the
account as being applied as follows:
(a) payment to the plaintiff and the second defendant of
their respective advances plus interest;
(b) payment to the plaintiff and the second defendant of
any remaining net proceeds and net profit in the ratio 40 (the
plaintiff):60
(the second defendant).
(10) Any amount payable in terms of the account to the
plaintiff from the net profit shall be payable by the second
defendant.
(11) The second defendant must deliver the account to
the plaintiff within two months from the date of this order.
(12) If the parties cannot reach agreement on the
content of the account within one month of its having been delivered
to the plaintiff,
either party shall be entitled to apply to this
court, on notice to the other party, for further directions regarding
the determination
of the points of dispute.
(13) The plaintiff’s claim, as purported
cessionary, for payment of the amount of R100 000, as pleaded in
paras 18-21
of the amended particulars of claim, is dismissed.
(14) The plaintiff’s alternative claim for payment
of the amounts lent by him to the second defendant personally and
totalling
R89 500 is dismissed on the basis that the said claims
have prescribed.
(15) The second defendant is to pay 75% of the
plaintiff’s costs associated with the issues determined by this
judgment excluding
at this stage, however, the costs of the
plaintiff’s expert Mr Hylton Greenbaum.
(16) If the matter comes again before court to determine
points of dispute in relation to the account, the plaintiff’s
entitlement
to the said expert costs shall be determined at that
hearing. If the matter does not again come before court as aforesaid,
the
plaintiff may apply, on notice to the second defendant, for an
order that the second defendant pay the said expert costs.
(17) If either party wishes the court to reconsider any
of the provisional orders made in paras (6) to (9), (11), (12), (15)
and
(16) above after hearing further evidence and/or argument, such
party shall, within two weeks of the making of this order, deliver

written notice to that effect, indicating which orders the party
wishes the court to reconsider, the modification sought and whether

the party claims a right to lead further evidence on the matters in
question or only wishes to address further argument. If such
notice
is delivered, the court will give further directions for the hearing
of the matter. If no such notice is delivered in respect
of any
particular provisional order, such order will become final after the
expiry of the two-week period (subject always to such
right as the
party may have to pursue an appeal).
ROGERS
J
APPEARANCES
For Plaintiff: Mr SB van Embden
Instructed by:
C & A Friedlander
3
rd
Floor, 42 Keerom Street
Cape
Town
For Second & Fourth Defendants: Mr S Walther
Instructed
by:
Andrew
de Vos & Associates
35
Brickfield Road
Salt
River
[1]
I shall refer to exhibits by the letter of the
exhibit bundle followed by the page number in that bundle. The
bundles comprise:
‘A’ - the court papers in AC 08/2010;
‘B’ - the court papers in AC 70/2010; ‘C’ -
the court
papers in AC 85/2010; ‘D’ - the plaintiff's
exhibit bundle; ‘E’ - the second defendant's exhibit
bundle;
‘F’ - sample catching agreements. I shall refer
to the pleadings bundle and notices bundle by way of the letters ‘P’

and ‘N’ respectively.
[2]
Disputes regarding ownership of ships became part
of English admiralty jurisdiction by way of s 4 of the
Admiralty Court
Act of 1840. Suits between co-owners regarding
ownership, possession, employment and earnings of ships were
subjected to admiralty
jurisdiction in terms of s 8 of the
Admiralty Court Act of 1861. For a brief survey of this jurisdiction
as at the beginning
of the last century, see Williams & Bruce
Admiralty Practice
3
rd
Ed (1902) Vol 1 at 30-35. See also Meeson
Admiralty
Jurisdiction and Practice
2
nd
Ed (2000) paras 2.037 – 2.047 regarding the similar provisions
now contained in ss 20(2)(a) and (b) of the Supreme
Court Act
of 1981.
[3]
I made this qualification because I was doubtful
whether the details of the account were in any event properly before
me, having
regard to the state of the pleadings.
[4]
The cheque was in an amount of R600 000.
Cameron-Dow testified that he paid an additional R100 000 to
secure the fourth
boat contemplated in his memorandum of 28 July
2006.
[5]
Referred to by its trading style ‘Wicked
Lady’.
[6]
Although Cameron-Dow in his evidence said that
this payment was made on 1 March 2007 he must be in error. The
propeller incident
occurred in mid-May 2007. His memorandum of 7
June 2007 (C222-223) recorded that he had made the payment the
previous day. Cooper's
handwritten receipt at D296, which is
undated, must thus have been issued on 6 June 2007.
[7]
For subsequent memoranda with similar references,
see E159 (11 June 2007), C229 (18 June 2007), C230 (19 June 2007)
and D38 (11
October 2007).
[8]
The prescribed form does not seem to have been
designed for this purpose but rather – as its heading
indicates – for
applications for the ‘replacement/entry
of a fishing vessel'.
[9]
See s 14(1) of the MLR Act read with the
definition in s 1 of 'total applied effort'.
[10]
Cameron-Dow drafted several such catching
agreements. Of the four sample agreements included in exhibit ‘F’,
three
used the figure of 30%.
[11]
D124 para 6.
[12]
P108-113.
[13]
In the email (at E163-164) Cameron-Dow referred
to the ‘present’ average monthly catch of 14,8 tons, the
word 'present'
in context meaning the figure reflected in
Laubscher's budget. The total catch for the year of 178 tons
reflected in the 5
th
line of the budget at P112 translates into a monthly average of
14,84 tons. This is considerably higher than the monthly average
in
the other two versions of the budget.
[14]
The arithmetic in para G2 of the letter (at D49)
has gone awry but the detail is unimportant. In para G2.2
Laubscher's skipper's
fee is said to be 12% but the quantified
figure of R154 500 is correctly based on 15% (R1 030 000
x 15% = R154 500).
The loss to the partnership would then be
R315 180, not R324 360 (R1 300 000 –
R154 500 = R875 500
x 36% net profit percentage =
R315 180).
[15]
D53-54 (13 August 2008), D53-54 (13 October 2008)
and D62-64 (10 December 2008)
[16]
N119-166 and N167-179.
[17]
I do not know whether any other applications, not
referred to in oral evidence, are contained in the exhibit bundles.
I made it
clear to counsel that the only documents to which I would
have regard were those actually referred to in oral evidence. This

accords with the pre-trial agreement between the parties recorded in
para 7.6 of the minute dated 28 October 2013 (P172).
[18]
E321-323.
[19]
Para 19.2 of the am
ended
plea erroneously refers to s 14.
[20]
E321-323.
[21]
[21]
Para C of the special plea.
[22]
P119-120.
[23]
See paras 38 and 40 at P131-132.