The first appellant (Budge) and the first respondent (Glyn-Cuthbert) were business partners from 2001 to 2007, jointly owning and developing immovable property through various companies and close corporations. In November 2007 they concluded a written dissolution of partnership agreement in terms of which their business relationship would terminate, properties would be sold or taken over by entities associated with the first respondent, and the net proceeds divided equally. The agreement contemplated delayed performance and provided for interest if payment was not made by specified dates. Over the following years the parties implemented the agreement in an ad hoc manner, concluded further arrangements, and continued transferring properties with the participation of both parties. Rusco (Pty) Ltd, envisaged as the purchasing vehicle, was never incorporated, but a related company (REM) fulfilled the management role without objection from the first appellant. Relations later deteriorated. The first appellant alleged that the first respondent repudiated the agreement by failing to perform timeously, failing to incorporate Rusco, and by statements made in attorneys’ correspondence in November 2010. Liquidation proceedings were later brought against two joint entities, and the appellants instituted nine claims in the Gauteng Local Division, including claims for cancellation, damages for repudiation, enrichment, and ancillary relief.
The appeal was dismissed. The cross-appeal was upheld in part: the orders of the court a quo in respect of claims A, C and H were set aside and substituted with an order dismissing claims A, B, C and H with costs; the omission to make a costs order in respect of claim B was corrected. The cross-appeal in respect of claim E was dismissed. The appellants were held jointly and severally liable for the respondents’ costs of the appeal and cross-appeal, and the first appellant was ordered to pay the costs of the application to amend the quantum of damages.
The case provides authoritative guidance on repudiation in South African contract law, particularly in the context of complex, long-running commercial relationships and dissolution agreements. It confirms that repudiation requires clear conduct evincing an intention not to be bound, and that delay or imperfect performance contemplated by the contract, coupled with acquiescence, will not constitute repudiation. The judgment also illustrates the importance of reading alleged repudiatory correspondence in its full factual and contractual context.