Gcabashe v Nene

• Jurisdiction: South Africa
• Judge: James JP
• Judgment Date: 13 June 1975
• Citation: 1975 (3) SA 912 (D)
• Hearing Date: 05 June 1975
• Court: Durban and Coast Local Division

James, J.P.:

The plaintiff sues the defendant claiming that the two of them had been partners in a business known as H Clernaville Bottle Store from early in 1968 and that on 19 March 1969 they had entered into an agreement to bring their relationship to an end in the following terms:

"(a)

That the partnership would be terminated.

(b)

That a valuation of the partnership business would be procured by the defendant from Messrs. Arthur Hopewell & Co.

(c)

That on receipt of the said valuation the plaintiff and the defendant would enter negotiations with a view to reaching agreement upon the means of liquidating the partnership business, it being contemplated that such liquidation would be effected by either the plaintiff or the defendant buying out the other's share, the value of such share being assessed on the basis of the aforesaid valuation of the business."

James JP

It was further alleged that a valuation had been obtained in terms of the agreement but that further protracted negotiations failed to produce any agreement upon the means of liquidation of the partnership. The plaintiff accordingly sued for an order in which she claimed, amongst other things, the liquidation of A the partnership business and for the payment to her of her share of the proceeds. It is unnecessary at this stage to deal further with the particulars of claim or the plea, beyond recording that the defendant denies that a partnership ever existed between him and the plaintiff and that one of the issues raised by the defendant is whether any evidence of what occurred at the meeting of 19 March 1969 and of the contents of B the subsequent letters passing between the parties can be heard by this Court. Defendant alleges that the meeting and the correspondence arose out of without prejudice discussions between the parties and consequently cannot be disclosed. The plaintiff admits that the meeting was held initially without prejudice but that an agreement was in fact arrived at and that, as a result, the evidence regarding the terms of the C agreement and negotiations leading up to it may properly be led. At the commencement of the case Mr. Donnellan, for the plaintiff and Mr. Gordon, for the defendant, were in agreement that the issue of whether any evidence in regard to the meeting of 19 March 1969 could be used in determining this case should first be decided as it might well be decisive. At the meeting D of 19 March 1969 there were present Mr. Attorney Lewis representing the plaintiff, the defendant and his attorney Mr. Wartski. The two attorneys were called to give evidence for the opposing parties but the defendant himself did not give evidence.

Mr. Lewis did not claim to have a clear independent recollection of what...