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[2018] ZAWCHC 80
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J.S v J.H.S (19122/14) [2018] ZAWCHC 80; [2018] 3 All SA 662 (WCC); 2018 (6) SA 528 (WCC) (27 June 2018)

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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
REPORTABLE
Case Number: 19122/14
In the matter between:
J
S
Plaintiff
and
J
H S
Defendant
JUDGMENT
DELIVERED 27 JUNE 2018
Andrews
AJ
Introduction
[1]
The Plaintiff instituted a claim against the Defendant
based on an
actio communi dividendo
for the termination of joint ownership
of an immovable property, ERF […] Parklands (“the
immovable property”),
repayment of a loan and
rei vindicatio
for the return of a motor vehicle registered in the name of the
Plaintiff.
[2]
The Defendant, in her counterclaim, seeks an order
declaring that a
universal partnership existed between the parties, declaring the
termination of the universal partnership
and division of the
joint estate.
Summary
of Evidence
[3]
At the trial, Roland Chute and J B testified in
the case for the
Plaintiff and J H S testified in the case for the Defendant. Their
evidence can be summarised as follows:
[4]
Roland Trevor Chute,
an estate agent,
[1]
articulated that he prepared a valuation of the immovable property
and valued same at R2.5 million. Mr Chute explained how
the
value of the immovable property was determined and the factors he
considered when deriving at the said market value. He described
the
immovable property comprising of two separate or independent
dwellings, one on the lower level and one on the upper level;
a
concept which, in his words, carried with it massive intrinsic value.
He furthermore explicated that one had to factor
the stairwell
and deck into the valuation which was necessary to achieve the top
floor. He explained that the top floor comprises
of two bedrooms and
two bathrooms with no garage and the bottom floor comprised of three
bedrooms, two bathrooms and a garage,
which differences are relevant
in determining the estimated replacement values of the two dwellings.
Hence, he determined that
the replacement value of the top floor to
be R1.1 million. Mr Chute also projected that the reasonable monthly
rental for the immovable
property at R21 000 per month being
R10 000 per month for the top floor and R11 000 per month
for the bottom floor.
[5]
J S (
hereinafter referred to as “the Plaintiff”)
testified that she was employed as a national IT Service and
Operational
Manager for [….]. She narrated that she was in a
17-year relationship with J S (hereinafter referred to as the
Defendant).
At the genesis of their relationship the parties were
both employed. They decided to move in together and conducted a joint
household.
The Plaintiff articulated that it was established and
agreed upon between the parties that each of them would contribute
the same
amount towards the joint household. She described that their
respective financial obligations would be split equally. The
Plaintiff
expounded further that it was agreed that whatever was put
in by either party they would receive back.
[6]
The Plaintiff narrated that the immovable property
was initially
registered in a close corporation and later transferred onto both the
parties’ names in undivided shares. The
Plaintiff explained the
circumstances under which the decision was taken to transfer the
property out of the close corporation.
[7]
The Plaintiff explained that her parents (hereinafter
referred to as
“the V E”) sold their home and utilised the proceeds of
the sale to erect the top floor dwelling which
was completed in 2006.
In light hereof, an agreement was entered into between the parties
and formalised through a document headed
“Addendum to
Agreement” and dated 20 May 2006 in order to safeguard the V E’
interest in the immovable property.
[8]
The Plaintiff testified that she paid for the bond
throughout the
duration of her relationship with the Defendant. Additionally, she
invested her pension fund pay-out of R180 000
into the property
in 2007, which she did on the understanding that she would receive it
back again. She explained that some of
the money was utilised on
alterations or improvements to the property. Various other expenses
were also paid by her as evidenced
from her bank statements. These
expenses included the rates and taxes.
[9]
In relation to the Toyota motor vehicle, the Plaintiff
testified that
same was registered in her name and that she had been paying the
instalment of R2137.70. According to the Plaintiff,
the vehicle is
paid up and there is nothing owing on the vehicle. The Plaintiff
stated that this is the only asset which the Defendant
has in her
possession.
[10]
The Plaintiff furthermore testified that the Defendant borrowed money
from
her to start a business. She explained, referring to her bank
statements, that payments were made to the Defendant in various
amounts
totalling R57 500. The Plaintiff testified that the
Defendant undertook to pay the loan amount into her credit card or
current
account. The Plaintiff testified that the loan amount that
she and the Defendant borrowed from her parents was in the amount of

R150 000 of which only R80 000 was used. This loan has been
fully settled.
[11]
Furthermore, the Plaintiff articulated the reasons underlying the
initial formulation
of the pleadings as a universal partnership. Her
evidence was that it was never her intention to give up her ‘
separate
estate rights in any common law marriage’
. The Plaintiff
testified that she and the Defendant never intended to get legally
married which is evidenced by the fact that they
had no shared
accounts.
[12]
The Plaintiff was taken line by line through her credit card and bank
statements
with a view to identifying which monthly and/or regular
contributions she had made, which included
inter alia
the bond
instalment amounts, ADT and ADSL line. The Plaintiff articulated that
she registered the Defendant as a dependant on her
medical aid and
also paid for her cellular telephone contract.
[13]
During cross-examination she confirmed that the parties conducted a
joint household,
but denied that a joint estate was formed. Although
she regarded the Defendant as being her life partner the Plaintiff
stated that
the financial aspect was guided by the parties’
respective Last Wills and Testaments, to regulate the extent of what
needed
to happen to their respective private estates.
[14]
The Plaintiff testified that the parties set out a budget which
amounted to
a fair share split of their contributions. It was put to
the Plaintiff that the Defendant would say that that there was no
real
arrangement
a pro pos
their finances, which the Plaintiff
denied. The Plaintiff testified that she had the intention to reclaim
other expenses, but had
no documents to support those claims. The
Plaintiff testified that all payments on the bond account must be
reimbursed to her and
be deducted from the value of the property.
Plaintiff testified that during the course of the relationship,
there were contributions
that were irrelevant. She referred to it as
goodwill. These items would include medical aid for example.
[15]
The re-advances drawn from the bond was used to settle both parties
credit
card debt, payments towards what the Plaintiff termed as
high-end expenses, a swimming pool, improvements and putting up a
wall
around the house.
[16]
In relation to the motor vehicle, the Plaintiff testified that she
made the
bulk of the payments towards the vehicle as it was agreed
that the payments ‘
would transact to her’
. In
light hereof, the Plaintiff held the view that the vehicle should be
returned to her.
[17]
The Plaintiff could not recall whether the Defendant also received
her pension
fund pay-out towards the end of 2007. She later confirmed
that an amount which was not very legible was paid to her, which
according
to the Defendant was approximately R58 000.
[18]
The Plaintiff was recalled to clarify the distinction between the
payments
on the bond. The one amount reflecting the instalment
payment and the other amounts reflected as debit orders –
variably.
The Plaintiff confirmed that the Defendant had no use and
enjoyment of the property since May 2014.
[19]
J H S,
the Defendant, testified that she and the Plaintiff
enjoyed a lifestyle as a married couple. According to the Defendant,
the parties’
intimate relationship began on 14 July 1996. She
described that the parties moved into a flat together in Gauteng when
their relationship
started. The Defendant narrated that she was
employed at the time and that the Plaintiff was not. At some point,
the Plaintiff,
after having worked as a hairdresser from 1993 to
1995, requested retrenchment. The Plaintiff was then unemployed for
approximately
two months, whereafter the Plaintiff found employment
at Standard Bank.
[20]
According to the Defendant, the parties never discussed who would be
responsible
for which household expenses. They did not keep any
records in relation to the expenses paid by each of them. Initially
the parties
rented a property and she paid the rent. Her testimony
was that she never expected the Plaintiff to reimburse her for these
rental
payments. When the parties moved into a two bedroom house in
Gauteng, the rent payment was shared between them. The Defendant
further
articulated that when the parties moved to Cape Town in 1997,
the Plaintiff was unemployed for a very brief period and then secured

employment at Old Mutual on a contract basis.  They were
assisted by their families during this time and the Defendant carried

the expenses because she was employed. The parties then moved to West
Beach where they rented a property and shared the expenses.
She
narrated that they shared her vehicle that was then owned by the
Defendant.
[21]
Later the parties bought a property together and became joint owners
of the
property. They shared the expenses and there was no
arrangement as to who was responsible for which expense. This
property was
then sold and the proceeds were used to purchase
furniture for the new house.
[22]
The current property was initially registered in a close corporation
of which
both parties held equal membership shares. This property was
thereafter transferred from the close corporation and registered into

their names jointly. The Defendant testified that there was no set
financial arrangement. The Plaintiff paid the bond instalment
and the
Defendant paid for everything else. According to the Defendant, the
intention was that it was their home where they would
one day retire.
[23]
The Defendant confirmed that the V E invested into the property by
renovating
the top level to enable the V E to reside there. The
Defendant conceded that initially she was not happy with this
arrangement
but later had a change of heart. She testified that she
regarded the V E parents as her in laws.
[24]
The Defendant testified that after her contract with her previous
employer
was terminated she decided to start her own business. She
explained that she received R160 000 from her pension fund, of
which
she kept R80 000 as start up capital for her business
and shared the other R80 000 with the Plaintiff.  The

Defendant disputed that the Plaintiff gave her R50 00 towards
starting her business venture and stated that it was in fact the

Plaintiff’s sister who advanced an amount of R20 000,
which she had repaid with interest.
[25]
During cross-examination the Defendant denied that the Plaintiff lent
her money
to advance her business, which started in 2009/2010. She
denied having received R55 011.19 as a loan from the Plaintiff. The
Defendant
stated that this amount is a fictitious amount created by
the Plaintiff’s mother for the receiver of revenue. The
Defendant
stated that in 2011, when her business wasn’t doing
well, she found employment on a contract basis.
[26]
The Defendant testified that she and the Plaintiff agreed that they
were life
partners. She testified that she understood that if the
Plaintiff was to pass away, that the top portion of the property
belonged
to the V E. The Defendant testified that the way her Will
was structured, upon her death, her entire estate would go to the
Plaintiff.
Furthermore, she testified that they discussed that
the Plaintiff’s estate would be split differently, namely, 25%
to the V E, 25% to the Plaintiff’s sister and 50% would go to
the Defendant. The Defendant articulated that she understood
that she
had no claim to the top section where the V E resided as that portion
was to be left to the Plaintiff’s sister.
She narrated that the
parties signed their respective Wills before the top section was
built.
[27]
The Defendant explained that the re-advances taken on the bond would
be paid
into the Plaintiff’s account. The Plaintiff would then
essentially control how this money is to be shared. According to the

Defendant, the bigger portion would always go to the Plaintiff. The
Defendant denied that the Plaintiff demanded reimbursement
of the
bond payments. The Defendant testified that she never expected the
Plaintiff to repay the insurance instalments for example,
which was
approximately R1 500 per month. The Defendant testified that she
understood the parties to have a joint estate.
[28]
The Defendant testified that the expenses she carried were no less
important
than the bond instalments, which were paid by the
Plaintiff.  She opposed the Plaintiff’s request for the
reimbursement
of the rates and bond instalments paid by her. The
Defendant disputed that it was a ‘50-50’ arrangement and
stated
that it was not like a business partnership.
[29]
The Defendant explicated that the vehicle that she is driving was
registered
in the name of the Plaintiff because she could not afford
the payments. Her evidence was that from about 2004 to 2007/8, the
instalments
for the vehicle came off her account. During the period
when the Defendant was in the process of establishing her business,
the
Plaintiff took over these payments. The instalments were in the
region of R2 200 per month. The approximate value of the vehicle

at the time when the Defendant testified was, according to the
Defendant, R33 000 and not R42 500 as suggested by the

Plaintiff.
[30]
She testified that she previously owned a Toyota motor vehicle that
she paid
for. This vehicle was stolen and because the vehicle was not
insured, they suffered a loss. Thereafter, they had an Opel Cadette

motor vehicle that was registered in the Plaintiff’s name.
This Opel, according to the Defendant, was traded in for

another Opel Astra, which was written off. The insurance money was
used to purchase the current vehicle being driven by the Defendant.

The Plaintiff purchased a Mini Cooper motor vehicle in 2007.
[31]
During cross-examination, the Defendant confirmed that the Plaintiff
was the
registered owner of the motor vehicle. The Defendant however
regarded them as being joint owners of the vehicle because she had

owned a vehicle previously. According to the Defendant, ownership of
the vehicle was never discussed. She testified that the decision
to
register the vehicle into the Plaintiff’s name was guided by
the Plaintiff’s mother who was concerned that the vehicle
may
be repossessed if the Defendant’s company “folded”.
[32]
The Defendant testified that the reason why she was no longer
residing in the
property was because she had been locked out. She
narrated that on 4 May 2014, after returning from being away from
home for the
weekend, she discovered that she was locked out of the
house as the locks had been changed.
[33]
The Defendant testified that she envisioned their relationship to
never end.
She was 13 years older than the Plaintiff and the
Plaintiff undertook to always support her. According to the
Defendant, she has
no other money and will soon be 57 years old. The
Defendant denied that the proposed distribution would be fair and
equitable.
Principal Submissions
on behalf of the Plaintiff
[34]
Counsel for the Plaintiff requested the Court to exercise its wide
and equitable
discretion in applying the principals of
actio
communi dividendo
in the division of the immovable property. It
was argued that the Plaintiff never intended to waive her entitlement
to reclaim
expenses paid in excess of her share or set them off
against the equity in the property upon termination of joint
ownership. Additionally,
it was contended that the Plaintiff never
intended to waive her right to her own separate estate.
[35]
The Plaintiff submitted that the most practical, just and equitable
way to
effect partition of the immovable property (after taking the V
E contribution into account) would be to divide the equity therein

equally between the parties, after determining the expenses incurred
towards the purchase, improvements to, and maintenance of
the
property itself, and apportioning those expenses equally between the
parties. It was argued that these expenses contributed
toward the
maintenance of the property and effectively increased the value of
the property, which accordingly contributed directly
to the increased
equity in the asset.
[36]
The Plaintiff submitted that the Court, in the exercise of its
discretion,
should allot the immovable property to the Plaintiff and
order the Plaintiff to pay an amount of R150 000 to the
Defendant
as compensation. This amount was recalculated at R227 500.
[37]
The Plaintiff contended that the partition based on the Defendant’s
counterclaim
would be grossly unfair since the Defendant did not
contribute to the property financially. The Plaintiff suggested that
the Court
make a finding that no universal partnership came into
existence and dismiss the counterclaim with costs. Counsel for the
Plaintiff
requested the Court to grant an order as per the draft
order proposed in line with the principals of
actio communi
dividendo
.
Principal Submissions
on behalf of the Defendant
[38]
Counsel for the Defendant submitted that a universal partnership came
into
existence and that the estate should be divided equally between
the parties, applying the principals of fairness. It was argued
that
there was no structured agreement and that both parties contributed
equally. Moreover, it was argued that the Defendant found
it to be
irrelevant to keep records as the parties’ relationship was
based on two individuals who wanted to share their lives
together and
retire together. According to counsel for the Defendant, ‘
[i]t
is simply impossible to untangle a 17 year intimate relationship’
.
[39]
Counsel for the Defendant requested the Court to declare that a
universal partnership
existed between the parties as the parties were
life partners, which union should follow the legal consequences akin
to a marriage
in community of property.
Common Cause Facts
[40]
It is common cause that:
a)      The parties had been in a
relationship with each other since approximately 1996, which
terminated
in March 2014;
b)     Both parties regarded each other as life
partners;
c)      The property was initially
registered in a close corporation and later into both parties’

names;
d)     During 2006, the V E paid for a top floor
apartment to be built on the property, and in which they now
reside;
e)      The V E’ interest in the
immovable property was not registered at the Deeds Office;
f)      This arrangement was recorded in a
document headed “Addendum to Agreement” which was
signed
by all parties on 20 May 2006;
g)     The market value of the immovable property
is approximately R2.5 million;
h)     The outstanding bond on the property is in
the region of R475 000;
i)       The Plaintiff paid an amount
of R180 000 from her pension pay-out into the bond account;
j)       Re-advances from the bond
account totalling R339 000 were utilised to finance improvements

to the property, to pay some of the parties respective debts, and
some of the cash was shared between the parties;
k)     Further improvements and maintenance were
effected to the immovable property to the value of approximately

R27 500;
l)       The Plaintiff paid all the
monthly mortgage bond instalments, the total amount calculated
from
December 2004 to January 2018 being R900 466; and
m)   The parties shared in contributing to the joint
household.
[41]
It was conceded during the trial that the value of the V E’
interest
in the immovable property should be calculated as 1/3 (one
third) of the market value of the property, which equates to
R833 333.
Issues
to be determined
[42]
The main issues in dispute are:
i.

Whether a universal partnership came into existence or whether
actio
communi dividendo
is applicable in deciding how the assets of the
parties accumulated during the period of their relationship should be
divided,
which consideration includes the motor vehicle currently in
the Defendant’s possession (in view of the Plaintiff’s
claim based on
rei vindicatio
); and
ii.

Whether the Plaintiff made a loan to the Defendant and if so, whether
the Defendant is obliged to repay the loan.
Legal Principals
[43]
The dispute in this matter revolves around the termination of joint
ownership
of an immovable property. It is common cause that the
parties co-habited and had a joint household and pets. It was argued
on behalf
of the Plaintiff that this in and of itself does not
translate into a universal partnership. The Defendant contended that
the parties
agreed to pool their resources including finances, time
and effort, for the joint benefit of both parties.
[44]
It is common cause that the parties regarded each other as life
partners. It
is trite that life partners are defined as people who
live together, outside of marriage, in a relationship which is
analogous
to, or has most of the characteristics of marriage. This
rule finds application to same-sex and opposite-sex life partners.
Legislation
has extended some recognition to persons in same-sex life
partnerships. These include,
inter alia,
the use of the term
“life partner” in the Lotteries Act,
[2]
the Basic Conditions of Employment Act,
[3]
and the Road Traffic Management Corporation Act.
[4]
[45]
Additionally, courts have afforded recognition and certain benefits
to same-sex
life partners,
[5]
although distinctions
a pro pos
married and unmarried people
are clear.
[6]
[46]
In view of the fact that the parties cannot agree on the terms of the
partition,
and specifically on the terms of the division of the
equity in the joint investment, which also served as the parties’
joint
residence during the subsistence of their relationship, it is
necessary to unpack the conflicting versions in this regard in
relation
to the applicable legal principles.
Actio
Communi Dividundo
[47]
In determining the termination of joint ownership of an immovable
property
based on
actio communi dividundo
it is trite that the
court has a wide discretion to order an equitable partition amongst
the co-owners. The Appellate Division examined
the
actio communi
dividundo
in
Robson v Theron
[7]
and summarized the applicable principals as follows:
‘
1. No co-owner is normally obliged to remain a co-owner
against his will.
2. This action is available to those who own specific tangible
things (res corporals) in co-ownership, irrespective of whether the

co-owners are partners or not, to claim division of the joint
property.
3. Hence this action may be brought by a co-owner for the division
of joint property where the co-owners cannot agree to the method
of
division. Since a partnership asset is joint property which is held
by the partners in co-ownership, it follows that a partner
may as a
co-owner bring this action for the division of a partnership asset
where the co-partners cannot agree to the method of
its division.
…
4. It is for purposes of this action immaterial whether the
co-owners possess the joint property jointly or neither of them
possess
it or only one of them is in possession thereof.
5. This action may also be used to claim as ancillary relief
payment of praestationes personales relating to profits enjoyed or
expenses incurred in connection with the joint property.
6. A court has a wide equitable discretion in making a division of
joint property. This wide equitable discretion is substantially

identical to the similar discretion which a court has in respect of
the mode of distribution of partnership assets among partners
as
described by Pothier.’
[48]
Counsel for the Plaintiff contended that the agreement between the
parties
was that they would contribute equally to the joint
household. In light of the disputed arrangement or agreement, it is
my view
that it would be apposite to determine whether a special
contract of partnership came into existence.
Pezzuto v
Dreyer
[8]
is instructive and deals with the essentials of a special contract of
partnership where it was stated that:
‘
The three essentials are (1) that each of the partners
bring something into the partnership; whether it be money, labour or
skill;
(2) that the business should be carried on for the joint
benefit of the parties; and (3) that the object should be to make a
profit
(Pothier: A Treatise on the Contract of Partnership (Tudor’s
translation) 1.3.8). A fourth requirement mentioned by Pothier
is
that the contract should be a legitimate one.’
[49]
A distinction was made between the parties’ joint household and
what
the Plaintiff termed “asset holding”, referring to
the immovable property. This, according to the Plaintiff, served
as
an investment vehicle and the parties’ joint residence. It is
common cause that this asset is the only asset which the
parties
owned jointly.
[50]
In amplification and justification as to why the Plaintiff contended
that no
joint estate was created is that the each party had separate
banking accounts, credit cards and pension funds. Additionally, they

each had an independent Last Will and Testament in terms whereof they
bequeathed their separate estates to different beneficiaries.
[51]
The Defendant testified that she invested all her time, effort and
money into
a 17-year partnership. It was contended on behalf of the
Defendant that it would not be just and equitable if a greater value
is
placed on financial contribution to that of emotional
contributions. Consequently, it would appear that the Plaintiff’s
payment
of the bond instalment is more important than
inter alia
,
the insurance payments and the DSTV payments, which the Defendant
made.
[52]
The high water mark, as counsel for the Defendant terms it, is that
the Plaintiff
conceded that the parties agreed to share in everything
excluding “substantial investments” or “asset
holdings”
such as the immovable property. Counsel for the
Defendant contended that had this been the case, it appears to be
incomprehensible
that the parties would have agreed to register the
property in both their names notwithstanding that the Defendant made
little
or no contribution towards the immovable property jointly
owned by the parties before they purchased the current property.
[53]
In amplification, counsel for the Defendant mooted that it would have
been
nonsensical and illogical for the Defendant to have contributed
to the day to day expenses of the joint household knowing

that she would have no security in, or entitlement to, the
“substantial investments” or “asset holdings”

in the event of the relationship being terminated.
[54]
In the case of
actio communi dividendo
adjustment of various
claims such as extant expenses for necessary improvements are
factored into the partition.
[9]
In order to achieve what the Plaintiff termed as the “squaring
of the books” the Plaintiff desired the following deductions
to
be taken into account in determining the Defendant’s portion in
the immovable property,  in addition to the V E’
portion
(R833 000) and the outstanding bond amount (R475 500),
namely:
i.      Pension contribution

R180 000
ii.      Maintenance and
Improvements

R 27  000
iii.      Bond
payments

R900 500
iv.      Municipal expenses
(calculated at R1000 per month)
[55]
It was further argued that, if the Defendant’s version is to be
accepted
that the parties are joint owners of the motor vehicle
currently in her possession, which the Plaintiff estimated to be
valued
at R42 500, the Plaintiff suggested that the Defendant
retains the vehicle as her sole and exclusive property but that half

of the value of the vehicle be deducted from the Defendant’s
portion.
[56]
Counsel for the Defendant contended that had the parties intended to
effect
actio communi dividendo
, then it would have made sense
for the Plaintiff to account for every cent but she did not. When
asked ‘why if there were
problems would they purchase a second
property together’ she responded by saying: “
I had the
promises… wanted to hear that she still loved me and that she
would change…when we purchased this…went
in with the
belief …promises that were not realised…there was hope
it was going to get better…’
[57]
As stated by Voet D.10.3.2 and seen in
Robson
above
[10]
,
the
actio
may arise whether there is a partnership or not. If
regard is to be had to the conspectus of the evidence, then the
requirements
set out in
Pezzuto v Dreyer
namely, that
each of the partners bring something into the partnership; that the
business should be carried on for the joint benefit
of the parties;
that the object should be to make a profit and that the contract
should be a legitimate one, finds relevance.
[58]
The evidence clearly suggests that the immovable property was
acquired for
the parties’ retirement and not as a proverbial
nest-egg. Even though the immovable property was an investment, it
does not
appear that the purpose of the investment was to make a
profit, but rather as a place for the parties to eventually retire.
[59]
The nature of their relationship was not purely a partnership for the
purposes
of a business transaction. Rather, I am of the view that a
special contract of partnership came into existence as will be shown

later in this judgment in relation to the principals of universal
partnership. It is evident that the parties conducted a joint

household and that both parties contributed thereto.
[60]
Although the
actio
may be the form in which proceedings are
brought to divide the assets of a partnership or claim payment for
expenses incurred,
I am not persuaded that the proposed calculation
by the Plaintiff to achieve a “squaring of the books” is
just and
equitable.
[61]
It is furthermore clear that that there is more to the dispute than
just the
impasse relating to the immovable property and as such the
principals applicable in
actio communi dividendo
cannot be
considered in a vacuum and would potentially be limited to an order
facilitating the joint ownership of the immovable
property to the
possible exclusion of a directive in relation to the other assets
which were acquired in the joint estate by the
parties.
[62]
In the circumstances, I am not persuaded that the parties’
intended
to effect
actio communi dividendo
as the parties did
not keep an updated recordal of all the financial contributions made
by either of them, save for those which
formed part of the trial
bundle and were introduced into evidence during the course of the
trial, which suggests that this was
only possibly considered later.
Additionally, it is evident that the equal arrangement suggested by
the Plaintiff was never implemented
and yet the Plaintiff stayed in
the relationship for 17 years.
[63]
The fundamental consideration therefore is what the parties’
intentions
were during the course of their relationship as set out in
Butters v Mncora
,
[11]
in order to establish
inter alia
, whether a universal
partnership came into existence between the parties.
Universal
Partnerships
[64]
The concept of universal partnership between cohabitees was
extensively examined
by the Supreme Court of Appeal in
Butters
.
[12]
Briefly, the Court was asked to determine whether a universal
partnership existed between two parties who had lived together for
20
years without getting married, where one party provided financially
and the other cared for their children and maintained the
common
household. The Court found that, on the facts in that matter, a
universal partnership existed.
[65]
In the course of the judgment, the Court stated the relevant legal
principles
thus:
‘
[11] … the general rule of our law is that
cohabitation does not give rise to special legal consequences
.
More particularly, the supportive and protective measures established
by family law are generally not available to those who remain

unmarried, despite their cohabitation, even for a lengthy period (see
eg Volks NO v Robinson
[2005] ZACC 2
;
2005 (5) BCLR 446
(CC)). Yet a cohabitee can
invoke one or more of the remedies available in private law,
provided, of course, that he or she can
establish the requirements
for that remedy. What the plaintiff sought to rely on in this case
was a remedy derived from the law
of partnership. Hence she had to
establish that she and the defendant were not only living together as
husband and wife, but that
they were partners. As to the essential
elements of a partnership, our courts have over the years accepted
the formulation by Pothier
(RJ Pothier A Treatise on the Law of
Partnership (Tudor's Translation 1.3.8)) as a correct statement of
our law (see eg Bester
v Van Niekerk
1960 (2) SA 779
(A) at 783H –
784A; E Mühlmann v Mühlmann
1981 (4) SA 632
(W) at 634C –
F; Pezzutto v Dreyer
[1992] ZASCA 46
;
1992 (3) SA 379
(A) at 390A – C). …
…
[18] In this light our courts appear to be supported by good
authority when they held, either expressly or by clear implication,

that:
(a) Universal partnerships of all property which extend beyond
commercial undertakings were part of Roman-Dutch law and still form

part of our law.
(b) A universal partnership of all property does not require an
express agreement. Like any other contract, it can also come into

existence by tacit agreement, that is, by an agreement derived from
the conduct of the parties.
(c) The requirements for a universal partnership of all property,
including universal partnerships between cohabitees, are the same
as
those formulated by Pothier for partnerships in general.
(d) Where the conduct of the parties is capable of more than one
inference, the test for when a tacit universal partnership can be

held to exist is whether it is more probable than not that a tacit
agreement had been reached.
(See eg Ally v Dinath
1984 (2) SA 451
(T) at 453F–455A;
Mühlmann v Mühlmann
1981 (4) SA 632
(W) at 634A–B;
Mühlmann v Mühlmann
1984 (3) SA 102
(A) at 109C–E;
Kritzinger v Kritzinger
1989 (1) SA 67
(A) at 77A; Sepheri v Scanlan
2008 (1) SA 322
(C) at 338A–F; Volks NO v Robinson
[2005] ZACC 2
;
2005 (5)
BCLR 446
(CC) para 125; Ponelat v Schrepfer
2012 (1) SA 206
(SCA)
paras 19–22; JJ Henning et al Law of Partnership (2010) at
20–29; 19 LAWSA 2 ed para 257.)’
[66]
Counsel for the Plaintiff contended that the facts of this matter are
distinguishable
from the
Butters
matter
(supra)
.
In that matter, the plaintiff had been a housewife and stay-at-home
mom for most of the duration of the parties’ cohabitation.
The
parties were also engaged but never married, and the plaintiff had
taken care of the defendant’s child from a previous

relationship. There was also a vast discrepancy between the parties’
estates.
[67]
It is trite that two types of universal partnerships are recognised
in our
common law, namely the
universorum quae ex quaestu venuint
and the
universorum bonorum.
[13]
[68]
The Defendant contended that the present claim falls within the ambit
of
universorum bonorum
. Counsel for the Defendant, referring
to
Sepheri v Scanlan
,
[14]
contended that there is no requirement that a universal partnership
which falls into this realm should be expressly entered into
by the
parties. Counsel for the Defendant also submitted that a universal
partnership is akin to the matrimonial property regime
governing
marriages in community of property.
[15]
[69]
The test to be applied in determining whether a universal partnership
came
into existence was aptly dealt with in
V v M
[16]
where it was held that:
‘
I fully agree with the counsel for the plaintiff that the
most important concession made by the defendant was that if the
relationship
had not terminated because of his infidelity the
plaintiff would have benefited from the assets he accumulated over
time. According
to the counsel for the defendant, the defendant’s
concession is irrelevant because it is not one of the elements
required
to prove the plaintiff’s case. Even though it is
accepted that indeed it is not one of the elements, however taking
together
everything into account it is more probable than not that a
tacit agreement had been reached… In conclusion, the plaintiff

has succeed in establishing on the balance of probabilities the
existence of a universal partnership between her and the defendant.’
[70]
In an attempt to further unpack this debate, it is necessary to
examine the
manner in which the parties conducted their affairs from
the time they entered into the relationship.
[17]
Counsel for the Defendant, relying on
V v M
(supra)
contended that on a balance of probabilities a universal partnership
came into existence as the parties pooled their resources
for the
benefit of their joint estate.
[71]
The Defendant’s counsel submitted that it would be impossible
to determine
each party’s financial contribution during their
17-year relationship. The Defendant was a beneficiary on the
Plaintiff’s
medical aid and on the medical aid documents she is
listed as a spouse. In terms of the Defendant’s Last Will and
Testament,
the Defendant bequeathed her entire estate to the
Plaintiff.
[72]
Counsel for the Plaintiff argued that even though the parties
regarded each
other as life partners during the subsistence of their
relationship, it does not mean that a universal partnership came into
existence.
It was further submitted that at common law, none of the
ex lege
consequences of a civil marriage ensue if a couple
lives together as life partners.  Counsel for the Defendant,
relying on
Muhlmann v Muhlmann
[18]
argued that our courts have recognised that a universal partnership
can come into existence between spouses and cohabitees where
they
agree to pool their resources.
[19]
[73]
In light hereof, it was argued by Counsel for the Defendant that
should the
Court declare that a universal partnership came into
existence, division of the joint estate should follow and
consequently only
the outstanding bond amount of R474 500 and
the V E portion, in the amount of R833 333, should be taken into
account.
[74]
If regard is had to the duration of the relationship, the nature of
the relationship
between the parties and that the parties conducted a
joint household, the only reasonable inference to be drawn is that
the parties
pooled their resources to the benefit of the joint
estate. Pellucid is the fact that both parties put everything they
had into
the proverbial melting pot (including their pensions).
Because they were both fully committed to the relationship, they each

gave what they could. To put a rand value to each one’s
contributions would, in my view, be tantamount to diminishing the

value of their individual contributions. The manner in which the
parties conducted their affairs fits with the concept of universal

partnership which describes a state of affairs between parties who
meet the requirements of a partnership as earlier stated:
contribution
by both, to the benefit of both and for the purpose of
making a profit. Consequently, I am satisfied on a balance of
probabilities
that a universal partnership came into existence
between the parties.
[75]
As previously stated, a universal partnership is similar to a
marriage in community
of property. It is trite that the nature of the
relief which parties can claim when married in community of property
is either
an order for division of the joint estate or an order for
forfeiture of the benefits of the marriage in community of
property.
[20]
It is furthermore trite that each spouse automatically shares in the
assets that are accumulated during the subsistence of the
marriage.
The moment spouses enter into a marriage in community of property,
they become co-owners of everything that either of
them owned prior
to the marriage. Furthermore, a marriage in community of property not
only results in community of assets but
also in community of
liabilities.
[76]
These fundamental legal principals therefore reinforce my view that
the Plaintiff’s
claim based on
actio communi dividendo
cannot be sustained as it is near impossible to untangle the threads
of interwoven narratives of life partners, which have layered

complexities akin thereto in the advancement of a joint household.
Discussion
[77]
There is no question that both parties had very deep affection for
each other.
Over the passage of time, this relationship became
discordant. In my view, the turning point in the relationship
occurred in, during
or about 2005 when, according to the Plaintiff,
the Defendant would repeatedly tell her that she did not have money.
The Plaintiff
felt financially burdened and this is when, in my view,
the Plaintiff started insisting on her
pro rata
share being
reimbursed. I find support for this conclusion in the Plaintiff’s
utterances when she testified “
If I take the burden –
you can only do it for so long until it becomes a huge problem…”
[78]
This was exacerbated by the Defendant’s abusive, hostile and
aggressive
responses, which aggravated the Plaintiff’s
disappointment in the Defendant. She testified that there was no
compassion from
the Defendant and she often was subjected to
emotional abuse and/or verbal abuse. The Plaintiff’s evidence
was that discussions
pertaining to finances would often be met with
hostility and the conversation would close down. It is pellucid that
the Plaintiff
feels deeply hurt which was borne out by numerous
emotional episodes when she testified.
[79]
Counsel for the Defendant contended that the Plaintiff’s claim
for division
based on the
actio communi dividendo
is
mala
fides
and borne out of bitterness towards the Defendant as she
wishes the Court to take all her payments towards the bond into
account
whilst refusing to acknowledge that the Defendant also made
substantial payments towards the insurance and other ancillary
payments
such as the DSTV.
[80]
Counsel for the Plaintiff indicated that the legal team was grappling
with
how to plead the Plaintiff’s cause of action, as at one
stage forfeiture was also pleaded which is indicative that there was

no
mala fide
in the Plaintiff’s ultimate claim based on
the
actio communi dividendo
. It was submitted that the
Plaintiff did not change her instructions and neither was there a
change of facts. The amendment was
sort to facilitate a proper
ventilation of the actual dispute between the parties.
[81]
It was apparent during the proceedings that the Plaintiff was
emotionally affected
by what had happened, however I am not persuaded
that her pursuit based on the
actio communi dividendo
was
driven by a malicious intention against the Defendant. It is
uncontroverted that the Plaintiff sought legal advice and guidance

from various legal minds, which may have had a persuasive influence
on deciding the Plaintiff’s course of action. It is for
this
reason that I will not make a negative inference about the various
amendments to the pleadings although it does appear that
the
Plaintiff may have hardened her heart as the future she envisioned
with the Defendant was clearly shattered. The evidence on
record
illuminates the position which is derived from the common cause
facts. Despite the fact that both parties displayed a measure
of
bitterness, they presented as a sincere, credible witnesses.
[82]
It is evident that the journey taken by the parties was filled with a
plethora
of events which must be viewed holistically, as it tells the
story of two people who had a dream of retiring together as partners.

The Plaintiff conceded that in the beginning of their relationship
she considered it to be permanent. There is no doubt that the
parties
went through much together and each of them contributed towards this
end goal which can at best be described as giving
in an unselfish
manner. The Plaintiff testified that she ‘
gave out of good
love’
. It is however apposite to mention that the Plaintiff
did not just give up on the relationship and continued to give out of
compassion,
emotional support and latitude. The Plaintiff’s
evidence was that she had hoped that the Defendant’s business
would
be successful.  As earlier stated, I reiterate that the
Plaintiff’s insistence on being reimbursed only commenced when

the Defendant could no longer contribute her share of the joint
household expenses, possibly because the Plaintiff felt it unfair

that she should carry the full financial burden.
[83]
This eventually resulted in the Defendant being denied access to the
property.
The Plaintiff conceded that the Defendant did not have the
use and enjoyment of the property since 2014. Based on the projected

rental income calculated at an escalation rate of 10% per annum, the
Defendant’s use and enjoyment of the property was calculated
at
R433 314.00, which amount, it was argued, should be reimbursed
to the Defendant.
Conclusion
[84]
During closing arguments proposed draft orders were prepared by each
of the
parties’ counsel. In light of the conclusion to which I
will come, I do not deem it necessary to deal with the proposals in

detail, save to state that the Plaintiff no longer seeks payment of
the amount of R56 000 in relation to the loan agreement.
The
calculation in determining the equity in the immovable property was
also revisited. In light of my findings pertaining to the
Plaintiff’s
claim based on the
actio communi dividundo
, the considerations
in deriving at the proposed settlement amount is moot.
[85]
The fact that the relationship terminated acrimoniously should not
have a prejudicial
consequence for the Defendant. In order to achieve
fairness to both the parties, the end result will incorporated a
hybrid of both
concepts namely
actio communi dividendo
as well
as a universal partnership as there are obvious overlaps in the
overarching legal principals which further extends to the
principals
analogous to a marriage in community of property. It therefore flows
that a division of the joint estate must follow.
The deprivation of
the use and enjoyment of the immovable property, should needless to
say, also be factored into the equation.
Of pivotal importance is
that a “clean break” is achieved through the final order
which will ultimately be granted
in order to bring about an equitable
partition amongst the parties.
[21]
Costs
[86]
The Plaintiff’s arguments relating to the reasons for
launching
the amendments are clear from the record and referenced in
this judgment and will not be repeated, save to state that it was
contended
that the amendment was allowed to facilitate a proper
ventilation of the actual dispute between the parties . On 15
February 2017,
leave was granted to amend the particulars of claim
and it was ordered that the costs of the application stand over for
later determination.
Counsel for Plaintiff requested the Court to
grant the costs order of the application. In a proposed draft order,
the Plaintiff
tendered the bond cancellation costs, half of the cost
of the transfer and suggested that each party pay their own costs.
Counsel
for the Defendant, on the other hand, argued that the
Plaintiff is to pay the costs of suit, including the costs of the
amendment.
[87]
Costs remain in the unfettered discretion of the Court. In light
hereof, and
in order to bring about a just and equitable result, I am
of the view that my order pertaining to all costs occasioned to give
effect to the transfer of the immovable are to be carried by the
Plaintiff and will serve to compensate the Defendant for deprivation

of her use and enjoyment of the immovable property.
Order
[88]
In the result, the following order is made:
1.
It
is declared that a universal partnership existed between the parties
during the period 14 July 1996 up to and including 8 March
2014.
2.
A
division of the joint estate is ordered as follows:
2.1.
The
parties’ co-ownership in the immovable property known as Erf
[…] PARKLANDS CITY OF CAPE TOWN held under title deed

T96371/99 (“
the
immovable property
”)
is terminated.
2.2.
The
Defendant’s registered share in the immovable property shall be
transferred and registered in the Plaintiff’s name
against
payment to the Defendant of the amount of R596 083.50.
(calculated as follows: R2 500 000 (value of
the property)
minus the outstanding bond of R474 500 and minus the amount of R
833 333 as agreed between the parties,
and then divided
equally).
2.3.
The
Plaintiff shall be liable for the costs of the transfer contemplated
in para 2.2 above.
2.4.
The
Plaintiff shall at her cost ensure that the Defendant is released
from any and all obligations pertaining to the bond registered
over
the immovable property, upon the registration of transfer of the
Defendant’s share in the immovable property to the
Plaintiff.
2.5.
The
parties shall sign all documents and do all things necessary to give
effect to the above.
2.6.
Should
the Plaintiff not take transfer of the Defendant’s half share
in the property as set out above within 4 months of the
date of this
order, the property shall be sold on the open market and the proceeds
of the sale, after deduction of only the outstanding
bond in the
amount of R474 500, estate agent commission and the amount of
R833 333 (as agreed between the parties), shall
be divided
equally between the parties.
2.7.
The
Defendant shall be entitled to retain the Toyota Corolla motor
vehicle with registration number CA656929 (“the Toyota
motor
vehicle”) as her sole and exclusive property.  The
Defendant shall at her cost ensure that the registration and

licensing of the Toyota motor vehicle is transferred into her name.
Plaintiff shall sign all documents and do all things
necessary to
give effect to the contents hereof.
2.8.
The
Sheriff of the above Honourable Court or his deputy is authorized to
take all such steps contemplated in paragraphs (2.1), (2.2),
(2.3),
(2.4), (2.5), (2.6) or (2.7) above in and on the parties’ stead
and behalf in the event of their failing to do so
within SEVEN (7)
calendar days of written demand.
2.9.
Each
party shall further retain as her sole property the assets and other
property currently in their possession and shall have
no further
claim against each other.
3.
Each
party will pay their own costs.
P ANDREWS, AJ
Acting Judge of the
High Court
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case no: 19122/14
In the matter
between:
J
S
Plaintiff
and
J H
S
Defendant
CIVIL JUDGMENT
-
overarching
legal principals -
actio communi
dividendo,
universal partnership –
-          Analogous to
marriage in community of property – “cleak break”

in order to bring about an equitable partition amongst the parties.
JUDGE

:
Andrews AJ
JUGDMENT
DELIVERED BY

:
Andrews AJ
FOR
Plaintiff

:
Adv. L Venter
INSTRUCTED
BY

:
J J Smit & Associates
FOR
Defendant

:
Adv.  T du Preez
INSTRUCTED
BY

:
Nielen Marais Attorneys
DATES OF HEARING

:
22-24
May 2018; 7 & 13 June 2018
DATE OF JUDGMENT

:
27 June 2018
[1]
TTT Property Group – Table
View.
[2]
57 of 1997 at
sections 3(7)(a)(ii), 3(8) and 7(5).
[3]
75 of 1997 at
section 27(2)(c)(i).
[4]
20 of 1999 at
sections 10(2) and 15(9).
[5]
See
Gory
v Kolver NO and Others
2007
(4) SA 97
(CC);
Du
Toit and Another v Minister for Welfare and Population Development
and Others (Lesbian and Gay Equality Project as
Amicus
Curiae
)
[2002] ZACC 20
;
2003
(2) SA 198
(CC);
Satchwell
v President of the Republic of South Africa and Another
2002
(6) SA 1
(CC);
Langemaat
v Minister of Safety and Security and Others
1998
(3) SA 312
(T) and
Du
Plessis v Road Accident Fund
2004
(1) SA 359 (SCA).
[6]
Volks N.O. v Robinson and
Others
2005 (5) BCLR
446 (CC).
[7]
1978 (1) SA
841
(A) at 856H-857D.
[8]
[1992] ZASCA 46
;
1992 (3) SA 379
(A) at 390.
[9]
The Law of South Africa
(2
nd
ed), vol. 27, at para 271.
[10]
See the discussion in
Robson
at
854G-855F.
[11]
2012 (4) SA 1
(SCA) at para 27:
‘
An
unexpressed mental reservation on the part of the defendant, that he
was willing to share in the benefits derived from the
plaintiff’s
contribution, but not in the surplus fruits of his own, would not,
in my view, satisfy the dictates of good
faith.’
[12]
Ibid
.
[13]
Sepheri v
Scanlan
2008
(1) SA 322
(C) at 338A-C
:
‘
Roman-Dutch
law recognises two types of universal partnership, that is, a
partnership
societas
universum bonorum
by
which the parties agree that all their possessions and everything
which they may in the future collectively or individually
acquire
from whatever source should be considered to be partnership
property, and a
societas
universum quae ex quaestu veniunt
where
the parties agree that all they may acquire during the continuation
of the partnership from every kind of commercial undertaking
shall
be taken to be partnership property.’
[14]
Ibid
.
[15]
Schrepfer v Ponelat
[2010] ZAWCHC 193
at para 29:
‘
The true
enquiry therefore is whether it is more probable or not that a
tacit
agreement had come
into existence (Muhlmann v Muhlmann (supra) at 124C). Taking into
consideration the reason and purpose of the
live-in relationship,
the pooling of their finances, the pooling of their skills and
resources, the joint investments made by
them to secure their
retirement. I concede that there was animus contrahendi between the
Plaintiff and the Defendant and it is
more probable than not that a
universal partnership had come into existen
ce
between the partie
s.’
.
See also
The South
African Law of Husband and Wife
(5
th
ed) at 157-8: ‘
Community
of property is a universal economic partnership of the spouses. All
their assets and liabilities are merged in a joint
estate
,
in which both spouses,
irrespective of the value of their financial contributions, hold
equal shares.’
[16]
[2016] ZAGPPHC 652 at paras
33-4.
[17]
See also
Butters
(supra)
at para 27,
where the Supreme Court of Appeal held that: ‘
It
is true that according to the defendant’s ipse dixit his
testimony, he indeed intended to keep everything he acquired
for
himself to the entire exclusion of the plaintiff. But I believe
there is more than one reason why this court is not bound
by the
defendant’s self-serving ipse dixit. Firstly, it is clear from
his testimony that the defendant would say virtually
anything that
advanced his cause. Secondly, when evaluating the conduct of the
parties, the court is entitled to proceed from
the premise that they
were dealing with one another in good faith (see eg South African
Forestry Co Ltd v York Timbers Ltd
2005 (3) SA 323
(SCA) ([2004]
4
All SA 168)
para 32). This must particularly be so where the parties
lived together in an intimate relationship in which they shared
their
most personal interests for almost 20 years. An unexpressed
mental reservation on the part of the defendant, that he was willing

to share in the benefits derived from the plaintiff’s
contribution, but not in the surplus fruits of his own would not,
in
my view, satisfy the dictates of good faith.’
[18]
1984 (3) SA 102
(A). See also
Kritzinger v
Kritzinger
1989 (1)
SA 67
(A) and
Ally v
Dinath
1984 (2) SA
451 (T).
[19]
Steyn v Hasse and Another
2015 (4) SA 405
(WCC) at para
17: ‘
However our
courts provide some measure of recognition to cohabitation and have
on many occasions found that an express or implied
universal
partnership existed between cohabitants. (Butters v Mncora
2012 (4)
SA 1
(SCA)). A universal partnership exists when parties act like
partners in all material respects without explicitly entering into
a
partnership agreement. The three essential elements are firstly,
that each contributes something into the partnership or bind

themselves to contribute something into it, secondly, the
partnership should be carried on for the joint benefit of both
parties
and, thirdly, the object should be to make profit…’
[20]
Van Nierkerk
PA ‘
A
Practical Guide to Patrimonial Litigation in Divorce Actions’
(Lexis
Nexis) [Issue 16] at 2-1 to 2-7.
[21]
LR v PR
2018
(3) SA 507
(WCC).