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[2019] ZAWCHC 158
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M.M v M.M (6572/2013) [2019] ZAWCHC 158 (8 February 2019)
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Certain
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THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 6572/2013
Before
the Hon. Mr Justice Bozalek
Hearing: 18, 19, 21
September and 11 October 2018
Delivered:
8 February 2019
In
the matter between:
M
M Plaintiff
and
M
M Defendant
JUDGMENT
BOZALEK
J
[1]
This
is an action in which the plaintiff sues the defendant, her former
husband under both civil and Muslim law, for a declaratory
order that
a universal partnership existed between the parties between late 1990
and August 2012 with each party having a 50% interest
in the
partnership. Ancillary relief was sought terminating the partnership
and establishing a mechanism to divide the assets equally
between the
parties. In the alternative, the plaintiff laid claim to a one half
undivided share in a residential property in which
the parties lived
during the period in question.
[2]
In
regard to the main claim, the plaintiff sought specific relief in
relation to the residential property, a shop business which
was
conducted from that property, the defendant’s pension interest
and any cash on hand. Essentially, the plaintiff sought
an order
requiring the defendant to purchase her share in all these assets
and, failing him doing so, directing that such assets
be liquidated
by a receiver in order to divide the proceeds between the parties.
[3]
In
regard to the alternative relief, the plaintiff similarly sought an
order that the defendant purchase her claimed share in the
property
at its prevailing market value and, failing that, an order that the
property be sold, if needs be at the instance of a
receiver, and the
proceeds divided.
Common
cause facts
[4]
The
following facts were common cause:
1.
The
parties concluded a civil marriage in community of property on 21
March 1986;
2.
On
23 March 1986 they also concluded a Muslim marriage;
3.
During
1989 the parties jointly purchased a residential property, Erf […]
Gaylee situated at […] Road, Dennemere,
Blackheath in the
Western Cape (‘the property’);
4.
On
2 March 1989 the property was registered in both their names and was
initially bonded to Saambou Bank in an amount of approximately
R40 000;
5.
During
1990 the defendant instituted civil divorce proceedings against the
plaintiff pursuant to which a consent paper was signed
by both
parties on 7 April 1990;
6.
The
civil marriage was terminated by decree of divorce, incorporating the
terms of the consent paper, on 15 May 1990;
7.
Around
May 1990 the plaintiff left the common home (the property) but
returned in November/December of the same year. The parties
then
lived together on the property as husband and wife until their
relationship finally came to an end 22 years later in August
2012,
when the plaintiff again left the common home;
8.
The
parties never remarried civilly;
9.
On
17 September 2012 the Muslim marriage entered into by the parties in
1986 was terminated by way of Talaq, at the instance of
the
defendant;
10.
Prior
to her marriage to the defendant the plaintiff bore, by another man,
a son named R;
11.
In
addition a son, N, was born to the parties in approximately 1987; and
12.
In
terms of clause 3 of the consent paper the parties agreed that the
property would become exclusively that of the defendant who
undertook
to pay the plaintiff an amount of R600 in monthly instalments of R50
in respect of her half share in the property.
The
plaintiff’s case
[5]
The
plaintiff’s case was based on the primary allegation that when
the parties reconciled in late 1990 they agreed to henceforth
live
together as husband and wife as if they were still married in
community of property. As a result, the plaintiff’s claim
continues, the parties expressly or tacitly or by implication
concluded a universal partnership in terms whereof both parties
abandoned the rights granted to them in terms of the deed of
settlement, undertook to invest their ‘
assets,
investments and future income’
in
the partnership to the benefit of both parties who would each have a
50% share in the partnership and further agreed that at
the
termination of the partnership all assets, investments and income
would be divided equally between them.
The
defendant’s case
[6]
The
defendant denied the existence of a universal partnership between
himself and the plaintiff. He pleaded that he had discharged
his
obligations in relation to the property in accordance with the
consent paper by paying the full amount of R600 to the plaintiff.
With regard to the fact that the parties remained married in
accordance with Islamic law after their civil divorce, the defendant
pleaded that the proprietary consequences of their living together as
man and wife were regulated by their Islamic marriage. In
terms
thereof there was no community of property nor a universal
partnership. The defendant also filed a claim in reconvention
pleading that he had discharged his obligation to the plaintiff in
terms of the consent paper in regard to the property with the
result
that he had become the sole and exclusive owner. He sought an order
that the plaintiff sign all documents necessary to transfer
her share
in the property into his name, failing which that the sheriff be
authorised to take such steps or sign such documents
necessary to
transfer the plaintiff’s share in the property to the
defendant.
The
issues
[7]
The
plaintiff was represented by counsel whilst the defendant was
unrepresented and conducted his own case. The only evidence heard
was
that of the plaintiff and the defendant. I proceed to summarise the
salient aspects of the evidence given by the parties against
the
background of the issues which are:
1.
Whether
a universal partnership subsisted during the period November/December
1990 to August 2012 whilst the parties lived together
on the property
as husband and wife;
2.
If
so, whether that universal partnership encompassed all of the
parties’ assets, investments and entitlements;
3.
If
no universal partnership was formed, whether the parties ever
abandoned their rights in terms of the consent paper to the property
with the result that the plaintiff remained the legitimate owner of a
one half undivided share in such property.
The
evidence
The
plaintiff
[8]
The
plaintiff testified that she met the defendant in 1984 and that they
were engaged for just over a year before marrying in March
1986. At
that stage the plaintiff was 20 years of age and the defendant was
26. They first lived with the plaintiff’s mother.
In
approximately 1988, they viewed a number of properties and eventually
jointly purchased the (Dennemere) property through the
Garden City
company, an incorporated association not for gain which provided
housing loans to less privileged persons, for R41 390
with a
bond to the value of R40 000 being registered over it. The
property was registered in the names of both parties. The
plaintiff
testified that both of them paid towards the house since both were
working. The bond instalments were met through a deduction
from the
defendant’s account but the plaintiff would contribute her
salary to the defendant in accordance with the convention
that a
Muslim husband is the head of the household. The defendant
accordingly administered their joint finances and applied them
towards their common household expenses. The plaintiff testified that
the bond was first held with Saambou and thereafter with
FNB.
[9]
A
bundle of documents was handed up by agreement. One document
indicates that there was a joint bond account number in the names
of
the plaintiff and the defendant.
[10]
The
plaintiff testified that soon after acquiring the property she began
to run a shop from it, initially selling crisps and sweets
through a
window. When she and the defendant saw that the business was going
well, it expanded and he began doing the purchases
for the business
as it grew. The business was then moved from the house into the
garage on the property, which was converted into
a house shop. At
that stage the parties were still both employed and the shop would be
opened in the afternoon and run by a schoolgirl
until the plaintiff
or the defendant returned home. Around 2002, the plaintiff resigned
from her full-time employment in order
to devote herself entirely to
the shop. Her hours in it were from 7 in the morning until 5 at
night, seven days a week. When the
defendant returned home from work
at about 5 o’clock he would take over the running of the shop
and the plaintiff would then
attend to all the household chores and
prepare supper. The plaintiff testified that she did all the work in
the house, including
caring for their child, and employed no help.
The income of the shop was used to pay for further stock, for their
common household
expenses and for their personal expenses. The
takings of the shop fell under the defendant’s control since he
cashed up.
Whatever the plaintiff needed to purchase she did so from
money which the defendant gave her out of the shop’s takings.
These
takings were used to cover expenses relating to their son,
groceries, electricity, furniture purchases from OK Bazaars and
contributions
towards the Muslim school and Mosque; in short all the
household’s monthly expenses. The cash takings were never paid
into
a banking account, the cash being simply used.
[11]
In
support of her version, the plaintiff handed up copies of monthly
budgets which were prepared and used during the course of the
relationship. These budgets were in the defendant’s handwriting
and reflect the amounts which were to be paid to various
instances or
creditors, for water and rates, electricity, M-Net each month and the
R600 to R750 monthly instalment to Saambou Building
Society in
respect of the bond repayments. The plaintiff had made copies of all
these documents before she finally parted from
the defendant in 2012.
She had found them in a file or briefcase of the defendant. Apart
from the bond instalments which were paid
by debits from the
defendant’s bank account, all the other expenses were paid for
in cash from the shop’s takings.
The
parties divorce
[12]
During
1990 the defendant had caused a divorce summons to be served upon the
plaintiff. The sheriff had explained to her that she
should defend
the action or run the risk of losing her son and everything else.
However, the defendant took the papers from her
and said that he
would sort the matter out so she took no further steps. Not long
thereafter the defendant returned home one evening
and handed her a
copy of a divorce order telling her that they were now divorced. The
plaintiff had then become very emotional
and asked the defendant how
he could have done that to her i.e. tricked her. His reply was
dismissive. She identified in the bundle
the consent paper which was
concluded between the parties and made an order of court. It provided
for the defendant to obtain custody
and control of their minor child
subject only to the plaintiff’s right of reasonable access. As
far as the proprietary consequences
of the marriage were concerned,
it provided that whatever they purchased from their own income during
the marriage would remain
theirs, that the defendant would purchase
the plaintiff’s half share in the property for the amount of
R600 payable in monthly
instalments of R50 and that no maintenance
would be payable to the plaintiff. In other words, the consent paper
was completely
tilted in favour of the defendant.
[13]
The
agreement reveals that it was signed at Kuilsriver on 7 April 1990
and the final order indicates that the divorce order was
granted on
15 May of that year. The plaintiff testified that she had signed the
agreement without reading or appreciating its consequences.
The
defendant had approached her with a document and told her she should
accompany him to the police station and sign it and that
it had to do
with a claim that they had against Saambou relating to the bond. She
had not read the document before signing it since
she trusted the
defendant. The plaintiff denied ever consenting to sell or transfer
her half share property to the defendant, or
to accept R600 as
compensation therefor. She also testified that the defendant had in
fact never paid R600 in compensation to her,
let alone any of the
monthly instalments. Nor had he ever demanded that she transfer her
half share in the property to him prior
to instituting his claim in
reconvention.
[14]
As
regards the reasons for the divorce, the plaintiff indicated that the
defendant was unhappy with her religious views. However,
as far as
she was concerned that was not a problem because she had become a
Muslim when she married the defendant. She felt the
main difficulty
in the marriage was that she had had a child before marrying the
defendant. That child only moved in with them
when he was seven years
of age and later caused tension in the marriage. A month after being
told of the divorce, the plaintiff
left the common home and went to
live with members of her family for a period of approximately six
months. During that time, however,
the defendant visited her
regularly often bringing her presents. Asked the reasons for these
visits, the plaintiff testified that
she believed that the defendant
had regretted the divorce although he had not expressly said so.
Eventually the defendant came
to ‘
fetch’
the plaintiff saying that she must come home. She eventually agreed
to go back to the defendant because they still loved each other
and
this was a chance to reconcile. From then on they lived in the
property as husband and wife as if they had never been divorced.
They
were still married, however, in terms of Muslim law. At this stage
their son, N, was four years old.
[15]
For
the next 22 years, the parties lived together as husband and wife
until, in August 2012, the plaintiff decided to finally leave
the
marriage. Her primary reason for doing so was the manner in which the
defendant treated her first child, R. He had become ‘
naughty’
,
as she put it, and found himself in trouble with the law. The
relationship between R and the defendant deteriorated and the latter
would chase her son from the house. On the last occasion this
happened the defendant had said that her son was not his problem
and
that she was lucky to have a roof over her head. The plaintiff
responded that if that was the case she was leaving as well
and
everything was over. The defendant had also said that she was a waste
of time.
[16]
Asked
about the financial or proprietary basis of the 22 years which they
had spent together after reconciling, the plaintiff testified
that
everything returned to ‘
normal’
,
as it was before they got divorced. There was no difference in the
manner in which they ran their affairs compared to that prior
to
their divorce. Asked further what her reaction would have been had
she been told in 1990 that their reconciliation would be
based on
their Muslim marriage and that their proprietary consequences would
be regulated thereby, the plaintiff replied that she
would then not
have agreed to reconcile. When asked what the plaintiff understood at
the time of their reconciliation would happen
if they once again
parted ways, her response was that her understanding was that the
assets would be divided equally amongst them.
[17]
During
the 22 years following their reconciliation the plaintiff had worked
in the house shop day and night, even after she underwent
major heart
surgery in 1993 and was declared unfit to work. The income from the
shop was also utilised to effect various improvements
to the
property. These included building another garage onto the house for
the storage of vehicles, erecting vibracrete walls all
around the
house and paving parts of the grounds. They also built an en suite
bathroom for the main bedroom and installed kitchen
and other
cupboards. Also funded by the shop takings was a separate entrance to
the property and a granny flat.
[18]
The
plaintiff was also asked what she understood to be married in
community in property and her response was that the assets belonged
to both parties in equal shares and this is what should have been
given effect to in August 2012 when the parties’ relationship
finally ended. When, at that time, she had brought up the question of
the property and other assets the defendant’s response
was that
she was entitled to nothing. The plaintiff testified that she only
learnt late in the relationship that the defendant
received a pension
in the form of a provident fund investment which was last held by
Alexander Forbes. She stated, moreover, that
she had little knowledge
of its value and had never received a cent from the proceeds. She
estimated that during all the years
the monthly takings from the shop
could have been R3000 but added that she was unable to say how much
profit it had made. In this
regard, it should be noted that when the
defendant testified he stated that during the 1990’s the shop
made an average of
R4000 to R5000 per month in profit.
[19]
The
plaintiff produced, as part of the bundle, various documents relating
to the defendant’s pension. These indicated that
his retirement
fund benefits with the Bidcorp Group Provident Fund had amounted to
some R274 000 in March 2011 and then apparently
had been placed
with an Alexander Forbes preservation provident fund. The defendant
then made regular withdrawals from the fund
including one for R30 000
in April 2011 and a further lump sum withdrawal of R120 000 in
November 2013. Another document
relating to his pension fund interest
reflected the defendant’s wishes as at December 2009 as to whom
his benefits should
go in the event of his death. In that document he
recorded the plaintiff as his spouse and her degree of dependency on
him as 100%
and his wishes as follows:
‘
Our
benefits must be calculated and distributed (sic) according to the
Muslim Inheritance Law i.e. my spouse one eighth, my son
seven
eighths. After calculation each beneficiary must get 20% of their
lump sum and then 5% every month of the balance’.
[20]
The
plaintiff testified that she regarded the defendant’s pension
benefits as part of the assets falling under the universal
partnership but that prior to the termination of their relationship
in 2012 she had no knowledge of either the defendant’s
pension
benefits or his wishes regarding how these were to be disposed of in
the event of his death.
[21]
She
testified further that in the Muslim religion the
husband
was the head of the household and must make provision for his wife
and other family members. He must see that they
have a roof
over his head and that his wife is clothed and provided with food.
According to the plaintiff the Muslim faith
did not require that she
as the wife had to go out and work. In the context of these
observations the plaintiff made the
point that, by contrast, she had
been a full economic partner in the marriage. She testified that the
dowry she had been given
by the defendant in the Muslim marriage, was
R50. The plaintiff also testified that the bond over the house
had been settled
well before the end of the term of the loan.
Documents in the bundle indicated that the bond had been cancelled
around July
2005 when a final instalment had been paid.
[22]
After
the plaintiff left the common home in August 2012, her belief was
that all the assets which had been accumulated during the
relationship and marriage had to be divided equally between the
parties. When the defendant had indicated that she would
get
nothing she consulted her present attorney and instituted her claim
in 2013. She testified that the unbonded property
had a present
value of about R600 000. She would prefer to sell what she
regarded as her half share to the defendant
but was doubtful whether
he could pay her for her half share. Plaintiff testified that
she presently worked three days per
week earning R3 600 per
month and lived in rented accommodation which cost her R2 000
per month. The defendant,
meanwhile, was living in the property
with his son and daughter in law. The son works for the City of
Cape Town and his wife
was also employed. The shop business was
still going strong with the defendant running it. Since 2012
the defendant
had not given her so much as a ‘
half
a loaf of bread’
.
[23]
In
cross examination the plaintiff testified that they had bought all
assets together during the second relationship, such as furniture,
a
bakkie and major home appliances. The plaintiff insisted
that the parties had had a joint banking account and that
they both
had to sign a slip when money was withdrawn from the account.
The defendant put to her that there was a bank account
but it was not
a joint one. It was also put to the plaintiff that the divorce
summons must have been served upon her first
and thereafter she
signed the consent paper rather than the other way around, as she had
testified. The defendant also put
it to the plaintiff that her
evidence that she only received a dowry of R50 was false because he
had a certificate showing that
the dowry he paid was R6, a concession
the plaintiff was prepared to make. The plaintiff testified that she
did not progress beyond
primary school. She agreed that after the
civil divorce she did not have a will but that the defendant did.
During the parties
relationship she had received about R300 per week
from the defendant and used it for both her personal accounts and for
household
goods. The plaintiff conceded that the term
‘
universal
partnership’
is not one which the parties used during the years they were
together. It was put to her by the defendant that she had left
the common home for long periods of time. She denied this
although stating that she had stayed with family and friends on
occasions when the defendant had chased or locked her out of the
house. The defendant raised the issue of the domestic worker,
named Grieta, putting it to her that she had worked in the common
home once a week and done many household chores. The plaintiff
denied this saying that Grieta had been asked to assist only on an
occasional basis when she, the plaintiff, had a lot of orders
to
attend to in the shop. The plaintiff did not dispute that one
mortgage bond over the property had been settled in the
greater part
during approximately 2002 from an inheritance that the defendant had
received from his late father. She also
testified that the
plaintiff had borrowed some R7 000 from her of the proceeds from
an insurance policy and that she had loaned
him this money because
there was not sufficient capital from the shop at that time.
She received the loan back through monies
earned by the shop but
these monies went back into the household in the form of expenses
that she paid and vehicles that she bought
for her two sons.
[24]
The
plaintiff testified that she knew that the defendant had his own will
but she was not troubled by this because she trusted him.
She
testified that the defendant had never told her that she was merely
his Muslim wife and would therefore only inherit accordingly.
She had only come across much, if not all, of the documentation which
she produced and which was found in the trial bundle when
she left
the relationship. At that stage she had made a point of looking for
and copying documents which cast light on the parties’
financial situation. She was shown the document indicating what
she would inherit as at December 2009 in accordance with
Islamic law,
namely, one eighth of the defendant’s provident fund
entitlement. The plaintiff conceded that this was
in accordance
with Muslim law but stated that she had only seen the document at the
time she had left the common home. The
defendant put it to her
that he had paid her the R50 instalments every month after their
civil divorce, but this was emphatically
denied by the plaintiff.
[25]
The
plaintiff confirmed that the defendant had not expressly explained to
her the proprietary basis upon which he allegedly wanted
to reconcile
with her. In fact there were no express discussions about the
property or money. When the plaintiff was
asked why she had not
raised these matters, she said they had not spoken about them since
the matter of the divorce was a sensitive
issue. The plaintiff
testified that the defendant had never told her at the time of
reconciliation that the property was
his and would remain only his.
Had he done so, the plaintiff testified, she would not have gone back
to the defendant.
Inasmuch as the defendant put to her in
cross-examination that after the reconciliation they had lived only
solely in accordance
with Muslim law, the plaintiff stated that this
made no sense to her since even before they had divorced they had
lived as a Muslim
husband and wife. As far as she was concerned
the defendant had cheated her in the initial civil divorce. The
defendant
cross-examined the plaintiff on her working record and it
transpired that he was using the plaintiff’s curriculum vitae
to
this end. The plaintiff confirmed the details in her
curriculum vitae in all material respects.
The
defendant
[26]
The
defendant confirmed that they had purchased the property together and
lived in it both before and after the civil divorce.
He
testified that he had initiated the first divorce proceedings because
the plaintiff had slept out on occasions and not told
him where she
had been. He had claimed custody of their child and the
property, his intention being that the plaintiff would
receive only
her own personal assets and the amount of R600 in respect of her
share in the property. The plaintiff testified
that the summons
had been served on the defendant and she had agreed that he would get
custody of their child and sole ownership
of the property. He
confirmed that she had returned to the common home after the civil
divorce and that the couple had lived
together as Muslim husband and
wife. However, she had again moved out of the common home from time
to time. On the last such occasion
in 2012 the argument between them
had related to her son, R, who had begun to steal things out of the
house. On that occasion he
stole a geyser from the defendant who had
told the plaintiff that he would not accept such behaviour. The
plaintiff had become
cross and said that if he chased R away then she
would also move out with him and she duly did so in August 2012.
The following
year the defendant had approached the Muslim Judicial
Council and obtained a Muslim divorce from the plaintiff. The
defendant
testified that he did not accept the plaintiff’s
claims in the present action since she had come and gone during the
marriage
and was the cause of the final ‘
Muslim
divorce’
.
Asked if he had accepted the plaintiff’s alternative claim for
a half share of the house he replied that this would only
have been
appropriate if the parties had remarried civilly. The defendant
initially testified that the shop had not been
‘
very’
profitable. If it was he would have stayed at home and worked
there fulltime.
[27]
The
defendant was cross-examined at some length since his evidence in
chief was relatively brief. He testified that he had
worked for
Conway Travel and thereafter for Rennies Travel from which employment
he had retired in 2012 as a result of a persistent
back problem.
At Rennies he had earned about between R5 500 to R6 000 per
month. He testified that the bond
over the property was
originally with Saambou and that they had never increased the bond
nor had he drawn any cash out of it.
The defendant testified
that he proceeded as far as grade 10 at school and that he was good
with figures. He agreed that the bond
had eventually been taken over
by FNB and that there was, at the very least, a joint bond account in
the parties’ names.
He conceded that the numerous monthly
budgets in the bundle were in his handwriting and were drawn up by
him. The defendant
conceded that he had not disputed the
plaintiff’s evidence that everything but the bond instalments
was paid out of the takings
from the shop. Nor did he appear to
take issue with the plaintiff’s evidence that the bulk of the
household expenses
were paid out of the takings of the shop which
themselves were never banked. The plaintiff testified, however,
that not all
the household expenses were paid out of the shop. The
defendant referred to the plaintiff’s CV which he had used to
cross-examine
her and conceded that according to it the plaintiff had
worked in the home ‘
Shop
4 U
’
business fulltime for nearly 10 years between 2002 and 2012 between 7
and 5pm daily as well as performing her household
duties. In
the CV, the plaintiff described herself as a ‘
shop
assistant’
and her duties as driving, administration, banking, the ordering of
stock and keeping track of stock.
[28]
The
defendant denied that at the time of their reconciliation the parties
had tacitly agreed to once again live together on the
same financial
or proprietary basis prior to their civil divorce. He conceded
however, that prior to their divorce they had
both been members of
the Muslim religion and had followed Muslim principles, with the same
regime applying after their reconciliation.
The defendant also
conceded that the manner in which the parties had run the home shop
and dealt with the proceeds had been the
same before and after their
divorce and reconciliation. He conceded too that, apart from
the proceeds of his pension, the
parties had both enjoyed the
benefits of the other assets referred to in the particulars of claim,
principally the property.
[29]
Regarding
the civil divorce the defendant denied that there were any suspicious
circumstances surrounding it. In particular, he
denied that he had
taken the served summons from the plaintiff and told her that he
would sort out the matter. He admitted
that he had accompanied
the plaintiff to the police station where she had signed the consent
paper. He denied however that
he had misled the plaintiff
regarding the nature of the document which she had signed.
[30]
The
defendant conceded that the attorney whom he had instructed in the
divorce had never met or spoken to plaintiff and that he
alone had
given the attorney instructions in drafting the consent paper.
He testified that the plaintiff had agreed to give
him custody of N
and had agreed to the terms relating to the property prior to the
signing of the consent paper. He was not
able to explain where
the amount of R600 came from but said that the parties had discussed
the figure. At a much later stage
in the trial, in fact during
argument, the defendant claimed that the consideration for the
plaintiff’s half share of the
house had been so small because
little had been paid off on the bond at that stage. This
however was never put to the plaintiff
nor was any evidence led
regarding the value of the property at the time that the divorce was
concluded.
[31]
Issue
was taken with the defendant on behalf of the plaintiff regarding her
allegedly leaving the common home for long periods.
It was put to him
that the true reason for the divorce was tension surrounding R, and
differences in their faith and that this
remained the situation until
they finally parted. He conceded in cross-examination that he had not
challenged the plaintiff’s
evidence that he took the divorce
summons from her saying that he would attend to them himself but
stated that he did indeed dispute
this. According to the defendant
the parties had reconciled mainly in the interests of the plaintiff
and for their child.
[32]
The
defendant testified that he was still running the shop business from
the property and it was put to him that he must be earning
at least
R5000 a month out of the shop. At all times the defendant was
uncharacteristically vague about the income which the shop
produced.
He conceded that the property had enjoyed many improvements but he
stated that the costs of the various improvements
had been limited
because of the good prices that he had obtained. According to the
defendant, the plaintiff had earned R300 per
week and that this was
compensation for her services in the shop, a proposition strongly
disputed by the plaintiff when she had
testified.
[33]
It
was further put to the defendant that it was strange that,
notwithstanding that the consent paper provided that he acquired the
plaintiff’s half share in the property, he had never taken any
steps to transfer her portion into his name between 1990 and
2013
when the plaintiff had instituted action against him. The defendant
disputed the obvious inference however and stated that
he had
approached an attorney in this regard but had been deterred by the
transfer and related costs. He had discussed the matter
with the
plaintiff and they had agreed in 2004 that they would ultimately
transfer the house to their son, N. The defendant did
not explain why
he would consult the plaintiff about the issue of to whom the house
would be transferred when, according to his
version, the plaintiff
had forfeited her half share in the property. When it was again put
to him that his taking no steps to transfer
the property militated
against his version, the defendant’s answer was that the
parties had had no money to do so. Regarding
his retirement and the
shop business it was put to the defendant that he had clearly earned
enough from the shop post-retirement
to maintain himself. As regards
his pension benefits, the defendant stated that he had to use these
to supplement his retirement
income. According to him all his pension
benefits had now been exhausted. The defendant was again very vague
as to where these
monies had gone even though one withdrawal was
R120 000. In this regard he testified he simply put these monies
into his ordinary
bank account and used them up. He stated that he
used these monies to ‘
enjoy
himself’
.
He denied that he had spent all these monies after receipt of summons
in the action so that the plaintiff could not get her hands
on these
sums. He had been 55 years old when he retired from Rennies. The
defendant also claimed to have spent R40 000 on
his son’s
wedding. It was put to him that according to the plaintiff he had
spent only R15 000 in that regard and that
she had been involved
in the matter and knew of the details. He stated that of the balance
of R120 000 he spent R70 000
‘
just
enjoying himself’
.
The defendant conceded that he had been a spendthrift in relation to
his pension monies. The only reason he could give for this
was
because he had the money and he had spent it.
[34]
As
regards the payment of R600 for the plaintiff’s half share in
the house the defendant testified that he made the first
payment on
or about 1 June 1990 and thenceforth monthly. On each occasion he had
expressly told the plaintiff that the payment
was in respect of her
share of the house. It was put to the defendant that taking into
account that the plaintiff was aggrieved
about how he had tricked her
in taking the order of divorce, it was completely improbable that he
would have paid her R50 religiously
each month in this manner whilst
at the same time wooing her to come back to the former common home
and resume the marital relationship.
The defendant denied the
apparent incompatibility of wooing the plaintiff back on the one hand
and paying her out R600 for her
half share thereon on the other hand.
Asked if he had obtained any receipts for these payments the
defendant replied in the negative,
stating that he had trusted the
plaintiff.
[35]
Earlier
in cross examination the defendant agreed that he and the plaintiff
had first used the cash from the shop’s takings
to settle their
monthly expenses and only if that was insufficient did he draw money
from his salary. His salary was therefore
not depleted every month.
The
applicable law
[36]
The
principles which a Court will apply where, in divorce proceedings, a
spouse married out of community of property claims that
a universal
partnership had existed between them and claims an order in respect
thereof and a division of the assets of such partnership,
were
summarised in
Muhlmann
v Muhlmann
1981 (4) WLD 632
by McCreath J. There the Court stated that the four
requisites of a partnership as laid down by Pothier and ‘
long
accepted by courts’
are,
‘
Firstly,
that each of the partners brings something into the partnership, or
binds himself to bring something into it, whether it
be money, or his
labour or his skill. The second essential is that business should be
carried out for the joint benefit of both
parties. The third is that
the object should be to make a profit. Finally, the contract between
the parties should be a legitimate
contract’
.
[1]
[37]
The
Court quoted with approval from the 4
th
edition of Hahlo South African Law of Husband and Wife, page 290
where the following was stated:
‘
However,
there must be something to indicate that the parties intended to
operate as a partnership, the mere fact that the wife
worked in her
husband’s business without pay is not sufficient. Unless it can
be shown that she made a substantial financial
contribution or
regularly rendered services going beyond those ordinarily expected of
a wife in her situation, the Courts will
not be readily persuaded to
imply a partnership agreement’.
[38]
The
Court added that it was a sound practical guide that where Pothier’s
four requirements are shown are to be present ‘
the
Court will find a partnership established unless such a conclusion is
negatived by a contrary intention disclosed on a correct
construction
of the agreement between the parties’
.
[2]
[39]
In
Ponelat
v Schrepfer
2012 (1) SA 206
, the Supreme Court of Appeal held that it was
apparent from the case law that a universal partnership can exist in
a marriage if
the necessary requirements for its existence are met.
The Court cited with approval the dictum in
Mulhmann
v Mulhmann
regarding the approach as to whether a tacit agreement can be held to
have been concluded, namely, ‘
whether
it was more probable than not that a tacit agreement had been
reached’
.
[40]
The
question of a tacit agreement giving rise to a universal partnership
came under the spotlight again in the matter of
Butters
v Mncora
[3]
before the Supreme Court of Appeal. The Court held, once again, that
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 parties. The Court held, echoing
Muhlmann
v Muhlmann
,
[4]
that 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. The majority of the Court in
Butters
v Mncora
,
per Brand JA, summed up the law in relation to universal partnerships
between cohabitants as follows:
‘
The
requirements for a partnership as formulated by Pothier had become a
well-established part of our law. Those requirements have
served us
well. They have been applied by our courts to universal partnerships
in general and universal partnerships between cohabitees
in
particular. I therefore cannot see the necessity for the formulation
of special requirements for the latter category. This is
also borne
out by the fact that Pothier himself did not find his formulation of
the requirements incompatible with the concept
of universal
partnerships of all property, which he discussed in some detail.’
[41]
In
his evidence and argument, in disputing the existence of any
universal partnership, the defendant placed considerable reliance
on
the proprietary regime established by the Muslim marriage between
himself and the plaintiff. It is necessary therefore to have
some
regard to this issue. It is well established that, as our law
currently stands, marriages entered into in terms of the tenets
of
Islam have not been afforded legal recognition for all purposes. In a
minority judgment in
Daniels
v Campbell and others
[5]
at para 19, Moseneke J (as he then was) noted that the ‘
persisting
invalidity of Muslim marriages is … a constitutional
anachronism’
.
The Courts have, however, on a piecemeal basis tried to ameliorate
the hardships faced by women and children in Muslim marriages
in a
number of cases relating inter alia to the husband’s duty to
maintain his wife as contemplated in sec 2(1) of the Maintenance
Act,
99 of 1998 (
Khan
v Khan
2005 (2) SA 272
(T)) and intestate succession (
Hassan
v Jacobs NO and others
2009 (5) SA 572
(CC) and
Moosa
NO and Others v Minister of Justice and Correctional Services and
Others
2018 (5) SA 13
(CC)).
[42]
In
the recent matter of the
Women’s
Legal Centre Trust v The President of the Republic of South Africa
[6]
and a host of other parties, which involved three consolidated
applications, the applicants sought an order that the President
and
Parliament of the Republic of South Africa had failed to fulfil the
obligations imposed upon them by the Constitution and requiring
them
to prepare and initiate a Bill for the recognition of Muslim
marriages as valid marriages for all purposes in South Africa
and to
regulate the consequences of such recognition. In the alternative, an
order was sought declaring the Marriage Act, the Divorce
Act and the
Recognition of Customary Marriages Act, insofar as they failed to
provide for and regulate for Muslim marriages as
valid marriages for
all purposes in South Africa, to be inconsistent with various
constitutional rights. A Full Bench of this Court
issued a
declaration that the state was indeed obliged to enact legislation to
recognise marriages solemnised in accordance with
the tenets of
Sharia Law (‘
Muslim
marriages’
)
as valid marriages and to regulate the consequences of such
recognition. It ordered the President and the Cabinet to rectify the
position within 24 months.
[43]
In
Rylands
v Edros
,
[7]
the Cape Provincial Division (as it then was) recognised a monogamous
Muslim marriage as a contract that is enforceable under South
African
law. The Court granted the wife’s claim for spousal maintenance
and
mut-ah-talaq
.
However, the Court was not able to grant the wife’s claim for
an equitable share of her tangible and intangible contributions
to
the growth of her husband’s estate because, unfortunately,
there was no evidence before the Court to confirm that such
a
practice was widely practised in the parties’ community.
[44]
According
to a paper entitled
‘
Proprietary
Consequences of a Muslim Marriage and Divorce’
,
by MT Karaan,
[8]
community of
property as a consequence of marriage is foreign to Islamic law.
Dealing with the concept of a universal partnership
between parties
to a marriage under Muslim law, the author states that the validity
of such a concept under Islamic law is undermined
by the element of
gharar
(uncertainty) in that it prospectively disposes of unidentified and
therefore uncertain, future assets. The author goes on to state
that
where both partners had contributed physical assets to the household,
each retains ownership of what he/she had contributed;
the estate
thus formed is considered one in which separate assets are mixed but
not merged into one estate. He adds:
‘
What
further makes the claim of a universal partnership within an Islamic
marriage untenable is the fact that the duty of support
(nafaqah) is
one of the major proprietary consequences in marriage in Islam. In a
universal partnership, since the partners share
joint control and
equal ownership over the estate, there is no duty of support’.
[45]
In
Women’s
Legal Centre Trust
supra, the Court confirmed that Islamic law does not recognise the
concept of communal property and the division of property.
[9]
I am aware, however, of no authority for the proposition that the
fact that parties are married under Muslim law precludes a universal
partnership being formed between such parties. In this regard one
must bear in mind that up until the present, marriages under
Sharia
law do not enjoy full legal recognition in our law and that even the
existence of an established proprietary regime in respect
of a
marriage does not preclude the parties thereto from entering into an
agreement that a different proprietary regime will operate,
such as a
universal partnership. In my view each case must be judged on its own
merits, more particularly as to whether such an
agreement was reached
either expressly, impliedly or tacitly. If, however, this Court
should find that the proprietary consequences
of the relationship
between the parties since 1990 were regulated
solely
in terms of Muslim law, the defendant will be correct in submitting
that no universal partnership was not concluded. But that is
a matter
of fact.
Evaluation
of the parties as witnesses
[46]
The
plaintiff generally created a favourable impression as a witness. Her
evidence was straightforward and apparently from the heart.
She made
no claims which might have lightened the burden of proof she bore and
willingly made concessions such as that there had
been no express
discussion regarding a universal partnership. The plaintiff’s
evidence stood up well to the defendant’s
cross-examination.
Indeed in many respects her recollection of events appeared to be
better than that of the defendant’s
and she was able to
convincingly refute a number of propositions put to her by him, such
as the role of the domestic worker, Grieta.
This is not to suggest
that the plaintiff’s evidence was without flaws. She insisted
that there was a joint bank account
when, it seems clear, this could
only have been the joint bond account. This, however, appeared to be
an instance of a flawed recollection
as opposed to a fabrication.
[47]
The
defendant did not create as favourable impression as a witness. His
answers were short and succinct and most of his evidence
was given
with an air of great confidence. Notwithstanding his limited formal
education, the defendant appears to be a very astute,
commercially
speaking. This was evident from his command of financial and legal
matters which he dealt with in his evidence. He
is obviously good
with figures and well organised, even pernickety, in his affairs. But
at the same time the defendant was cagey
and at times evasive in
regard to financial matters. This was particularly the case when he
was questioned about what he had done
with his pension benefits to
exhaust them within a very short period of time and the earnings
which the shop generated. His evidence
that he simply splurged the
pension benefits was both lacking in detail and unconvincing. Such
conduct on his part appeared, moreover,
completely out of keeping
with general careful and canny financial conduct throughout the
marriage as a whole. Furthermore, I cannot
accept the defendant’s
contentions that the parties did not live together for lengthy
periods of times during the 22 years
following their reconciliation.
Whilst it may well have been the case that during troubled periods in
the marriage the plaintiff
lived elsewhere for short periods of time,
it is clear that the relationship endured until August 2012.
[48]
It
was also clear that had the plaintiff not found and salvaged
documentation relating to the financial aspects of the marriage,
little of that information would have been forthcoming from the
defendant. Important aspects of the defendant’s evidence
were
implausible. Examples of this were his evidence regarding the terms
of their initial divorce and subsequent reconciliation
which I have
discussed above. In particular, the defendant floundered when he was
asked about payments he claimed to have made
to the plaintiff
pursuant to the consent paper in regard to her half share of the
property. Where his evidence differs from that
of the plaintiff and
is unsubstantiated it must be approached with caution since the
defendant was clearly quite prepared to give
self-serving and even
misleading evidence.
Analysis
[49]
Turning
to the central issue of whether a universal partnership was formed
pursuant to a tacit agreement, it is necessary in the
first place to
have regard to the conduct of the parties upon and after their
reconciliation against the background of the normal
proprietary
consequences of a Muslim marriage. A Muslim wife is not required to
work or contribute towards the payment of household
expenses. It is
the duty of the Muslim husband to provide a roof, food and clothing
for his family. Despite this, the plaintiff
contributed
substantially, initially by way of her salary, and later by running
the shop virtually singlehandedly and attending
to domestic chores.
These facts distinguish the present matter from the normally expected
responsibilities and undertakings of
a married Muslim couple. Given
the circumstances in which the parties reconciled, it seems clear
that it was mutually understood
that they would be living together as
husband and wife as if they had not been divorced; in other words
with much the same proprietary
consequences as was the case prior to
their divorce. The conduct of the parties throughout the rest of
their relationship was ,in
my view, also not in line with what
normally would have been expected from a Muslim wife and supports the
inference that a tacit
agreement was struck between the parties to
conclude a universal partnership. Yet a further important instance of
conduct signifying
the existence of a universal partnership was the
manner in which the parties handled the finances and in particular
the takings
earned from the shop business. These were not pocketed by
the plaintiff or the defendant for either of their own personal use
or
consumption. The monies were used to pay all the household
expenses and to acquire assets which were jointly used such as a
bakkie,
large electrical appliances and extensive improvements to the
property in the form of additions and alterations. Earnings were also
ploughed back into the business to purchase further stock and to
convert the garage into a shop. As far as the common expenses
were
concerned it appears that it was only the bond instalment which was
paid through a debit off the defendant’s banking
account,
presumably because it would have been inconvenient or unacceptable to
the mortgagee for any other arrangement to be utilised.
[50]
The
following passage from the judgment of Brand JA in
Butters
v Mncora
at paras [25] – [26] seems most apposite to the present matter:
‘
[25]
From the plaintiff's point of view it is clear that she shared in the
benefits of the defendant's financial contribution. The
defendant's
attitude that she paid the household expenses with money supplied by
him confirms this fact. In short, he paid for
everything because she
had no earnings of her own. If the parties had spent all the
money earned by the defendant in this
way it would be quite plain, I
think, that the contribution by both parties, be it financial or
otherwise, was shared and consumed
in the pursuit of their common
enterprise. Does the fact that his earnings exceeded their financial
needs, which facilitated the
accumulation of capital assets, make any
difference? I think not.
[26]
What the defendant's contention amounts to is that it must be
inferred from the conduct of the parties that, though they intended
to share the benefits of their joint contribution, the defendant
would retain the surplus income and accumulate assets only for
himself. From the plaintiff's viewpoint that intent would be quite
remarkable. It would mean that she intended to contribute her
everything for almost 20 years to assist the defendant in acquiring
assets for himself only; that in her old age she would be entirely
dependent for her very existence on the benevolence of the defendant
towards her.’
[51]
As
far as the property is concerned there was evidence that the
defendant was able to pay off the bond well before the usual maturity
date because he made use of monies which he inherited from his late
father in 2002. However, this evidence did not fully emerge
when the
defendant testified, but was only set out in his heads of argument.
This fact alone does not render the property that
of the defendant
since this merely released a greater proportion of the shop’s
earnings for improvements to the property
and the balance to the
property and of their spousal joint estate to be built up.
Further in this regard, it is significant
that in the 22 years
following the granting of an order of divorce and, notwithstanding
the fact that according to the defendant
he settled the amount owing
in terms of the mortgage bond in 2002, he never took any concrete
steps to have the property transferred
into his name. The reasons he
furnished, namely, that various expenses would follow should he have
the plaintiff’s half share
transferred into his name are far
from convincing, particularly inasmuch as in 2011 when he retired the
plaintiff had access to
a large cash reserve. The defendant’s
failure to pursue his alleged rights in regard to transfer the
property lends credence
to the plaintiff’s case that a
universal partnership was formed in which the property was the major
asset.
[52]
Reverting
to the requirements for a normal partnership, the first of which is
that each of the partners must bring something to
the partnership or
bind himself to do so, it appears to me that this requirement has
been met. What the plaintiff brought was,
in large measure, her
labour and her skills as well as her conceiving of the idea for a
shop. When the business required capital
this was generated from the
shop’s earnings. The defendant also contributed in the form of
skills and labour although on
a much lesser scale in the form of
serving behind the counter for a limited number of hours at the end
of the day and in assisting
or undertaking the purchase of
replacement stock.
[53]
The
defendant also contributed the property, being the premises from
which the business was run. It is arguable that both parties
contributed that property since the shop business was started when
the parties were still civilly married and, therefore, when
the
property was jointly held and owned by the parties. After the
divorce, at least nominally, the property was owned by the defendant
alone and it could be argued on his behalf that this was the
contribution he alone made. However, it is equally arguable that,
through not pursuing his apparent right to claim ownership of the
entire property and transferring it into his own name, the defendant
waived his right to any such claim and the property reverted to one
being jointly owned by the parties. In support of this is the
fact
that the defendant was unable to offer proof that he had even paid
the token sum of R600 to the plaintiff in respect of her
half share
of the property. The defendant’s evidence was that at one and
the same time he made such payments month in month
out whilst
simultaneously wooing the plaintiff to come back and live with him as
husband and wife. This, in my view, is inherently
improbable. Be that
as it may it is unnecessary for the Court to make a definite finding
that the plaintiff retained her half share
of the property in order
to find that she made a contribution to the partnership. Her labour
and skills alone would suffice for
Pothier’s first requirement
to be met.
[54]
The
second requirement is that the partnership has to be carried on for
the benefit of both parties. This was undoubtedly the case
as is
demonstrated by the fact that the business’ takings were used
to satisfy the joint household expenses including bond
instalments.
Clearly, payment of the household expenses from the earnings ensured
that part of the defendant’s salary necessary
to meet the bond
instalments was always available. The business’ earnings were
also used to improve the property, which both
parties enjoyed, and to
purchase other assets which they each used to their benefit such as
major electrical appliances and a vehicle.
The third
requirement for a partnership, namely, that its object be to make
profit was also clearly met. The entire rationale
behind the house
shop business was to make a profit and to improve the financial
position of the parties.
[55]
It
is as well to recall or bear in mind the admonition in
Muhlmann
that where one has to do with the relationship between spouses and
there is no express agreement between the parties, the Court
must be
careful to ensure that there is indeed an
animus
contrahendi
and that the conduct from which a contract is sought to be inferred
is not simply that which reflects what is ordinarily to be
expected
of a wife in a given situation. In this regard, Hahlo goes further,
suggesting that simply showing that a wife worked
in her husband’s
business without pay is insufficient. In the present matter the
business was not that of the husband but
was a joint project largely
initiated and driven by the plaintiff. She clearly made a substantial
contribution of her time, skills
and in ploughing her share of the
takings back into the business. The plaintiff was clear about her
animus
contrahendi.
She
testified that financially speaking things went back to normal after
their reconciliation and that she would not have agreed
to reconcile
on the basis that she would henceforth be entitled to more than a
Muslim wife’s proprietary rights.
[56]
It
is common cause that the parties were initially civilly married in
community of property. It follows therefore that had the civil
marriage not ended within approximately four years but had continued
for a substantial period of time, all things being equal the
plaintiff would have expected to share equally in whatever assets the
parties built up during the course of the marriage including,
most
notably, the equity in the property.
[57]
Although
it was obviously important to the parties in 1990 to marry also under
Muslim law, their prior civil marriage with its resultant
community
of property regime clearly showed the proprietary basis upon which
their relationship was initially built. There was
no evidence of any
factors which, after the first divorce, caused the parties to change
their views on what would be an appropriate
proprietary regime
following their reconciliation some six months later.
[58]
In
essence it is the defendant’s case that having divorced the
plaintiff civilly but nonetheless having reconciled and resumed
a
spousal relationship within six to nine months, the proprietary
consequences of the relationship were governed solely by the
provisions of Muslim law, i.e. the marriage still subsisting. For a
number of reasons I have difficulty in accepting this proposition.
In
the first place, the defendant never testified that at the time of
reconciliation, as one would expect in such circumstances,
he advised
the plaintiff that in any new relationship she could expect no more
than what a woman married under Muslim law alone
could expect i.e. as
provided by Sharia law and different to that when they were married
under civil law. Nor was there any suggestion
that the defendant made
this position clear to the plaintiff at any later stage, apart
perhaps from the period shortly before the
plaintiff left around
2012.
[59]
A
further reason why the existence of such a common understanding is
improbable is the background to the divorce and the reconciliation.
The plaintiff testified that in effect that she had been duped by the
defendant who obtained a divorce order on terms strikingly
unfavourable to her. Not only did she cede custody of her infant son
but her half share in the only and primary asset in the marriage
was
acquired by the defendant for next to nothing. The plaintiff’s
evidence that she had been lulled by the defendant into
not disputing
the divorce was detailed and credible. When she signed the consent
paper, the plaintiff was still young, comparatively
uneducated and
had taken no legal advice. The defendant was six years older than her
and, clearly, even then, a man who knew what
he wanted and how to go
about achieving this. It was common cause that it was the defendant
alone who gave instructions to his
attorney to draw the consent
paper. One asks why, if the consent paper truly represented the
wishes of the plaintiff, the defendant
saw it as necessary to sign it
a police station.
[60]
When,
soon after the divorce the defendant began to woo the plaintiff to
come back to him, the defendant must have been well aware
that as far
as the plaintiff was concerned she had been duped into a divorce
settlement which unashamedly favoured him. In these
circumstances it
is most unlikely either that she willingly resumed the relationship
on the basis that she would acquire no assets
during the course of
the marriage other than those which she herself earned through her
own individual efforts or that, the other
side of the coin, anything
which the parties built through their joint efforts would accrue
solely to the defendant. Equally, it
is quite improbable that the
defendant, at that stage a supplicant in relation to the plaintiff’s
affections, could have
believed that, having left the household
smarting after the dubious civil divorce, the plaintiff would resume
a marital relationship
with him after six or nine months on
proprietary terms even more unfavourable her.
[61]
A
further important consideration in determining whether a tacit
agreement was reached to form a universal partnership lies in the
conduct of the parties. Apart from the very act of reconciling and
resuming their relationship, the further conduct of the parties
must
be examined to determine whether a tacit agreement as contended for
arose. Significantly, the house shop business began as
early as 1988
and was the initiative of the plaintiff. She began selling crisps and
sweets from inside the house through a window.
When the defendant
noted how well the little business was doing he began to take an
interest and assisted in making purchases.
It was, however, mainly
the plaintiff’s contribution that got the business up and
running and growing. In retrospect this
may well have been another
reason why the defendant was so keen to reconcile with the plaintiff
after divorcing her civilly since
clearly without her contribution
the business was not sustainable. That contribution to the business
was invaluable. It was she
who worked from 7am till 5pm in the shop
once it became a fulltime enterprise around 2002. The defendant
merely had to take over
for a few hours after returning home from his
job at approximately 5pm. When he took over at that time there was no
question of
the plaintiff then getting a chance to relax. She then
had to attend to the household chores and ensure that the defendant
got
his supper. The plaintiff was no mere employee in the business
although the defendant sought to argue that his payment to her of
R300 per week was in respect of her services in the shop. It is
hardly credible that a person running a business from 7 until 5,
let
alone a wife, would accept such a paltry sum in respect of these
services. In any event, the plaintiff testified that this
was not
compensation but was merely money which she used to pay certain
household expenses and some of her expenses. Throughout
the
approximate twenty year period when the shop business flourished, the
defendant was working and had it not been for the plaintiff
the
business would have either closed up or the defendant would have had
to find someone completely trustworthy and pay such person
to run the
business for those long hours.
[62]
As
far as his
animus
contrahendi
is concerned, the defendant’s evidence in support of a contrary
intention (to that of concluding a universal partnership)
was firstly
that his intention was to merely live together with the plaintiff as
husband and wife in accordance with Muslim law
or custom. This
argument or intention is undermined firstly by the fact that the
parties did not act in strict compliance with
Muslim law and custom
when it came to the sharing of their income and expenses. Perhaps
more importantly is the fact that they
were already married under
Muslim law during the duration of the civil marriage (in community of
property). The defendant was also
not able to cite any instances of
him externally manifesting his claimed intention. Relevant in this
regard is Brand JA’s
remarks at para 27 of the judgment in
Butters
:
‘
[27]
It is true that, according to the defendant's ipse dixit during
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.’
[63]
Secondly,
the defendant relied on the fact that he had executed a Muslim will
according to which the plaintiff would merely have
inherited one
eighth of his estate. This fact however does not take the matter much
further. In the first place a will, by definition,
disposes of one’s
own estate and nothing more and does not necessarily address one’s
existing proprietary circumstances.
Secondly, in ignorance of the
consequences of their marriage, parties married in community of
property often execute wills in which
they purport to bequeath joint
assets under the mistaken belief that they are the sole owner
thereof.
[64]
On
the other hand there were indications in the evidence pointing away
from an unlimited universal partnership. The defendant testified
that
the plaintiff had loaned him R7000 from funds received by herself
from an insurance policy in order to supplement a cash shortfall
in
the shop and further that she had her own bank account at Absa Bank.
The loan, which was admitted by the plaintiff, suggests
that there
were monies which the parties regarded as solely theirs and to a
limited degree this is reinforced by the fact that
the parties had
personal bank accounts. Another such indicator was the manner in
which the defendant dealt with his pension benefits
and the fact that
these only came to the direct attention of the plaintiff late in the
relationship. A document which found
its way into the trial
bundle recorded the defendant’s directions to his
provident/pension fund, namely that his son would
acquire seven
eighths of such benefits and the plaintiff only one eighth. The
plaintiff’s evidence was that she became aware,
presumably, in
2011 or thereabouts, that the defendant received pension benefits of
some R250 000 which she nonetheless regarded
as ‘
part
of the universal partnership’
.
Given the plaintiff’s lack of direct knowledge during most of
the relationship of these benefits and in the light of the
defendant’s express wishes as to how they should devolve on his
passing, I do not consider that they can be included in the
universal
partnership. The defendant’s pension benefits were earned by
his labour and service alone. They were not an asset
which the
parties discussed and were far more likely to be an asset which the
defendant would consider to be his alone, as borne
out by his written
instructions.
[65]
As
mentioned, the defendant’s evidence that it was his intention
to retain all the profits and proceeds of the shop business
for
himself must be approached with caution on account of its
self-serving nature. Acceptance of his evidence would imply either
that he
bona
fide
believed that the plaintiff would continue the marital relationship
indefinitely knowing that if it ended she would be left virtually
destitute or he must have realised that this was not the case but
remained silent, so allowing his conduct to lull the plaintiff
into
believing that this was not the case. As noted by Brand JA in
Butters
v Mncora
,
if the latter inference was the correct one to draw, this would not
satisfy the dictates of good faith.
[66]
A
further admonition in
Mulhmann
is the reference to the statement in Wessels Law of Contract
[10]
that before a court can find that there has been a tacit contract it
must be satisfied that the person whom it is proposed to fix
with a
tacit contract must be fully aware of all the circumstances connected
with the transaction, the act must be unequivocal
and the tacit
contract must not extend to more than what the parties contemplated.
[67]
What
was before the parties on a daily basis was their shared enterprise
(the shop business) which sustained the household through
the
contributions of the plaintiff and the defendant and which allowed
them to acquire and enhance their assets which principally
were the
property and the movables such as the vehicle and other lesser assets
which they acquired and enjoyed.
[68]
I
am satisfied on the evidence as a whole therefore that the parties
entered into a universal partnership following the reconciliation.
However, I am not persuaded that it included either the defendant’s
pensions benefits or monies which the parties held in
separate bank
accounts. In the result I find that a limited universal partnership
came into existence in or about late 1990 encompassing
all the assets
of the parties, most notably the property, but excluding the
defendant’s pension benefits and any monies separately
held by
them in personal bank accounts.
[69]
The
conclusion which I have reached renders it unnecessary for me to deal
with the plaintiff’s alternative claim to the effect
that the
defendant waived his right to exclusive ownership of the property
notwithstanding the terms of the consent paper. It follows
then that
the defendant’s counterclaim falls to be dismissed.
Conclusion
[70]
For
these reasons the following order must issue:
a)
It
is declared that a limited universal partnership existed between the
parties and that each party held a 50% interest therein;
b)
It
is declared that the assets of the universal partnership include the
property as well as all the assets acquired by the parties
between
November/December 1990 and August 2012 save for any pension benefits
earned by the defendant or any assets acquired by
him from the
proceeds thereof and any monies held by the parties in personal (i.e.
non joint) bank accounts as at 2 August 2012;
c)
The
universal partnership was terminated on 2 August 2012;
d)
A
receiver shall be appointed and authorised to liquidate the universal
partnership on the following basis:
(i)
Unless
the parties within 30 (thirty) calendar days agree upon a receiver,
the receiver shall upon the request of any party be appointed
by the
chairman of the Cape Law Society;
(ii)
The
parties shall within 30 (thirty) calendar days of the appointment of
the receiver each furnish the other with a complete statement
of all
the assets and liabilities which each party deems to belong to the
universal partnership, properly supported by the available
documents
and records in order to determine the full extent of such assets and
liabilities;
(iii)
The
receiver may,
mero
motu
or upon request by a party, request the other party to provide any
further documents or records to the receiver or the requesting
party;
(iv)
The
receiver shall determine a date for the disclosure and debatement of
the statements referred to in prayers (ii) and (iii) and
shall
preside over the meeting;
(v)
The
receiver shall within 30 (thirty) calendar days subsequent to the
debatement of the statements make a written award wherein
all the
assets and liabilities of the universal partnership are confirmed and
the net assets thereof are divided between the parties
in accordance
with each party’s interest as determined by the Honourable
Court;
(vi)
The
receiver shall be authorised to sell any asset of the universal
partnership in order to divide the proceeds thereof between
the
parties or to apply the proceeds towards the settlement of any
liabilities of the partnership and/or his costs;
(vii)
The
receiver’s finding shall be final and the parties shall give
effect thereto within the period to be determined by the
receiver;
(viii)
Should
any party refuse to give his or her co-operation in order to give
effect to the receiver’s award, the receiver is authorised
to
sign any document on behalf of such defaulting party in order to give
effect to his award.
(ix)
The
costs of the receiver shall be paid by the parties in accordance with
their respective interest in the universal partnership.
e)
In the event that Erf […], Gaylee, situated at […],
Dennemere, Blackheath, Western Cape
(“the property”)
falls to be sold it must be at the prevailing market value, or such
price as the parties may agree upon, and the nett proceeds
thereof
must be divided between the parties equally.
f)
Should the property not be sold within 90 days from the date of any
award by the receiver to that effect, the parties may within
14
(fourteen) days furnish the name of a reputable auctioneer to the
receiver who, in his/her discretion, shall appoint an auctioneer
to
sell the property upon terms to be set by the receiver, whereafter
the nett proceeds must be divided between the parties equally.
g)
The receiver is authorised to furnish the chosen auctioneer with the
necessary mandate and to sign all documents that may be
required by
them on behalf of the Defendant;
h)
Should the Plaintiff or the Defendant fail within 7 (seven) days of a
request by the receiver to sign any document in order to
give effect
to the order of the Honourable Court, the Sheriff of the Honourable
Court is authorised to sign such documents on behalf
of such party;
i)
The Defendant’s counterclaim is dismissed;
j)
The Defendant shall pay the costs of the suit.
____________________
BOZALEK
J
For
the Plaintiff
: Adv A
Walters
As
Instructed by
:
For
the Defendant
: In Person
[1]
At page 634 A
– D.
[2]
At page 635
D – E.
[3]
2012 (4) SA
1 (SCA).
[4]
1984 (3) SA
102 (AD).
[5]
[2004] ZACC 14
;
2004
(5) SA 331
(CC).
[6]
2018 (6) SA
598 (WCC).
[7]
1997 (2) SA
690 (C).
[8]
Proprietary
Consequences of a Muslim Marriage and Divorce, by MT Karaan
at page 24
para 41.
Source:
http://duai.org.za/downloads/fatawa/Proprietary%20consequences%20of%20a%20muslim%20marriage%20and%20divorce.pdf
[9]
At para 222.
[10]
Wessels Law
of Contract in South Africa 2
nd
ed vol 1 para 266.