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[2012] ZAGPJHC 262
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LT v VLM (36040/11) [2012] ZAGPJHC 262 (22 November 2012)
NOT REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 36040/11
DATE:22/11/2012
In
the matter between:
L T Plaintiff
(BORN J)
and
VLAM Defendant
(Identity number:...)
J U D G M E N T
MATHOPO
J:
Introduction
[1] The plaintiff instituted an
action against the defendant on the basis of a universal partnership
which she alleges existed
between herself and the Defendant. As a
result thereof, plaintiff claims her half share of the proceeds of a
property (hereinafter
referred to as the “Donnelley property”),
which she alleges was acquired during the existence of their
relationship.
Alternatively, the plaintiff claim monies that she
paid over in respect of certain properties, on the basis of an unjust
enrichment
claim.
BACKGROUND
[2] The plaintiff and the defendant were life partners who started
dating in October 2003. At that time plaintiff was working
part time
as driver at Mr Delivery. The parties moved together as a couple in
December 2003 and resided at the defendant’s
house in Von
Brandis Street, Turffontein (Von Brandis property) together with the
defendant’s parents.
[3] It is the plaintiff’s case that prior to moving together,
the defendant asked for a commitment from the plaintiff to
show that
she had “single her out to be exclusively hers”. As a
token of commitment, plaintiff gave the defendant
her grandmother’s
gold band.
[4] The plaintiff states that although she was employed part-time, it
was agreed between her and the defendant that she would pay
the bond
every month and in fact paid R1 500.00 and the defendant would cover
other household expenses. During February 2004 the
plaintiff
obtained permanent employment and the defendant wanted further
commitment and discussed taking their relationship to
another level.
Marriage was also discussed. In addition and because same sex
marriages were not yet legalised, the parties discussed
universal
partnership for a period of approximately six (6) months.
[5] On the 11
th
December 2004, the parties reaffirmed a
commitment to each other by exchanging vows to be life partners
before Reverend McLachlan
in Pretoria and after a ceremony which was
attended by the defendant’s friends were pronounced as a couple
and signed the
register and later furnished with a certificate
entitled “certificate of life commitment”.
[6] The defendant later expressed a desire to have a child and the
parties went to Cryobank for fertility treatment. After the
second
attempt at artificial insemination the defendant conceived and a
child was born on the 8
th
December 2005. The fertility
costs were covered by the defendant medical aid and some by herself.
[7] The plaintiff states that she was in theatre when the child
(Jessica) was born and cut the umbilical cord. After the birth
of
the child her role was to change the diapers, night feed her and see
to it that the child got her bottle. She also transported
the child
to and from the day care centre and further contributed to the
child’s clothing.
[8] As the Von Brandis property was now smaller, the parties went
house hunting and after a period of 5 to 6 months, the plaintiff
states that she saw an advert in the newspaper and showed it to the
defendant. Thereafter they viewed the property in the company
of the
defendant’s parents and decided to purchase it. The offer to
purchase was signed by the defendant alone on the 27
th
April 2005, and the property registered in the defendant’s name
on the 14
th
October 2005. The reason why the property was
registered in the name of the defendant is because she was working at
First National
Bank and thus qualified for a preferential or
discounted interest rate. Another reason according to the plaintiff
is that they
did not want everyone to know about their relationship
for fear of discrimination.
[9] Plaintiff states that she continued with the bond repayments and
contributed more than what was required of her so that the
bond could
be paid off much quicker and the defendant continued with the payment
of the household living expenses. Over and above
the bond
repayments, the plaintiff also paid for her cell phone which was in
the defendant’s name and later paid half the
minor child’s
after care fees.
[10] As regards the bond application, the plaintiff states that since
the defendant’s salary was insufficient to qualify
for a bond,
the bank advised the defendant to draw up a document indicating that
she was receiving some monies monthly from the
plaintiff and her
mother. It is the plaintiff’s evidence that after the said
documents were signed and submitted to the
bank, the bond was then
granted to the defendant. In essence, her evidence is that absent
the aforesaid documents, the defendant
would not have been able to
purchase the Donnelly property. The plaintiff states that all these
steps were done in pursuance of
their common design to put all their
resources together and acquire this property.
[11] The plaintiff also confirmed that monthly payments made by her
to the defendant in various amounts as set out in Exhibit “A”
as well as Exhibit “B” on page 18 of the bundle. These
payments were not disputed by the defendants but the latter
contended
that they were not made in respect of bond payments but for living
expenses and what she described as rent.
[12] The plaintiff further testified that during the course of their
relationship, she purchased clothes for the defendant and
contributed
towards the expenses of the defendant’s parents holiday to
Jeffrey’s Bay by purchasing their train tickets
and in addition
gave them pocket money as well. She further testified that after
moving to the Donnelly property, she painted
each and every bedroom
and also fixed locks before moving in. Again it is the plaintiff’s
case that this was done because
of their agreement to acquire the
property together and look after its maintenance and upkeep.
[13] The plaintiff further gave evidence that during November 2008,
she and the defendant attended the Cherry Festival in the Free
State
Province and along the way she stumbled upon a “sms” on
the defendant’s cell phone apparently sent by her
“girlfriend”
one Kathlin. In the sms, the latter was declaring her undying love
for the defendant. As a result of
this incident, the relationship
was damaged. She testified that she did not leave the defendant
immediately because of her close
ties with the minor child, J.
[14] However during 2010, matters came to a head, the relationship
could not be repaired. She discussed the dissolution of their
agreement with the defendant. In lieu of her half-share in respect
of the Donnelly property, the defendant undertook to pay R60
000 from
her Sanlam Policy and balance to be paid in due course. In essence,
the plaintiff stated that their relationship was
in her eyes a
marriage and that the agreement was at all times to jointly share in
the common property.
[15] The defendant gave evidence in support of her case and called
her mother as a witness. The defendant did not dispute the
evidence
of the plaintiff regarding the fact that they were partners, signed a
commitment before Reverend McLachlan in Pretoria.
She pertinently
disputed the existence of a universal partnership. Although she
admitted that the plaintiff made certain monthly
payments when they
moved in together as a couple, these payments according to her were
for living expenses and rent.
[16] She testified that since the Donnelly property was her third
property and having been a sole owner of her other previous
properties, she did not intend to share the said property with the
plaintiff. She disputed the plaintiff’s assertions that
she
made contributions towards the bond.
[17] During cross examination, it was put to her that the evidence
that Donnelly property was exclusively hers was not put to the
plaintiff. She could not proffer any plausible explanation save
reiterating that she would never buy a property with someone else.
When asked why the payments made by the plaintiff were above the bond
amount of R2 400.00 she was unable to give an answer and
when pressed
further, she tried to introduce new evidence by stating that
plaintiff often borrowed money for petrol from her and
that the extra
payments were sometimes for the petrol loan.
[18] The defendant further gave evidence regarding the loan that she
supposedly took on behalf of the plaintiff at Absa Bank.
It
transpired during cross examination that the loan amount was R26
000.00 and the plaintiff was only given the sum of R6 000.00,
the
defendant using the balance for her needs.
[19] Although she tried to deny the existence of the universal
partnership and the role played by the plaintiff in assisting with
the acquisition of the Donnelly property and bond repayments. She
conceded during cross examination that “without the plaintiff’s
assistance, she could not have been able to purchase the said
property”. She however, persisted notwithstanding the above
concession and uncontradicted facts, that she made it clear in the
relationship that the house was her property. Again this crucial
aspect of her evidence was not put to the plaintiff. When asked why
this aspect was not canvassed with the plaintiff, she was
unable to
give an answer. It being patently clear that this was a recent
fabrication.
[20] When asked by the court she admitted that the plaintiff and her
were life partners and able to share everything yet she was
reluctant
to concede that the plaintiff was entitled to share in the Donnelly
property. She also conceded that the Donnelly property
was the only
asset acquired during the existence of their relationship.
[22] The defendant‘s mother testified about the monthly
payments she had been making to the defendant for rent since 2003.
Her evidence did not advance the defendant’s case any further.
[23] Counsel for the plaintiff
submitted that having regard to the evidence, the property was the
only asset which the partnership
acquired and following the
concession by the defendant, the only reasonable inference that can
be drawn is the existence of the
partnership. She argued correctly
in my view that it would make no sense for the plaintiff to enter
into a life long commitment,
contribute financially to the
maintenance and upkeep of the estate yet share no part in the
property. As authority for her submission
that the conduct of the
parties expressly or tacitly evinces nothing less than universal
partnership, counsel relied extensively
on Pothier.
A
Treatise on the law of partnership (Tudor’s Translation 1.3.8)
and
Ponelat v Schrepfer
2012 (1) SA 206
SCA and Butters v Mncora
2012 (4) SA 1
SCA
cases which reaffirmed the principle of universal partnership between
cohabitees. The courts described the three essentials of
partnership
as:
“
The three essentials are, firstly, that each of the parties
brings something into the partnership or binds themselves to bring
something
into it, whether it be money, or labour, or skill. The
second element is that the partnership business should be carried on
for
the joint benefit of both parties. The third is that the object
should be to make a profit. A fourth element proposed by Pothier,
namely, that the partnership contract should be legitimate, has been
discounted by our courts for being common to all contracts
(See eg
Bester v Niekerk supra at 784).”
[24] The case advanced for the plaintiff is that its case meets the
above requirements. Specifically it was argued that Roman
and Roman
Dutch Law also recognised universal partnership and further that a
distinction was drawn between two categories. The
first was the
societas
unversorum bonorum
by which parties agree to put in
common all their property, present and future. The second type
consisted of the
societas unversorum quae ex quaestu veniunt,
where the parties agree that all they may acquire during the
subsistence of the partnership, from every commercial undertaking
shall be the partnership property. Counsel submitted that the case
for the plaintiff falls squarely within the second category.
[25] Counsel for the defendant submitted that the defendant conceded
receiving payments made by the plaintiff but states that these
payments were for living expenses and what she described as rent and
urged upon me to accept the evidence of the defendant that
no
universal partnership existed between the parties because the
plaintiff’s pleaded case is that an oral agreement came
into
being, whereas the property that formed the subject of this matter,
the Donnelly property, was purchased and registered in
the name of
the defendant alone. Counsel submitted that this fact alone gives
credence to the defendant’s assertion that
she made it clear to
the plaintiff that she did not want to jointly own the property with
anybody else.
[26] Another argument advanced by the counsel for the defendant is
that universal partnership cannot come into existence in respect
of a
particular asset. This argument is misplaced, it is not the parties
evidence that there were other assets in the relationship.
The
defendant conceded that the only asset acquired during the
relationship was the Donnelly property.
ASSESSMENT OF THE EVIDENCE
[27] The plaintiff testified in a coherent, lucid and credible
manner. She did not seek to advance her case by fabricating or
adjusting her evidence as the case progresses. Observing her giving
evidence, I was left with the distinct impression that she
was
committed to the relationship with the defendant. Right at the
outset of their relationship with meagre earnings whilst employed
on
a part time basis at Mr Deliver, she contributed towards the bond
repayments in respect of the Von Brandis property. When she
secured
permanent employment she continued making payments towards the bond
and this continued also after the Donnelly property
was acquired.
Her evidence that she made extra payments towards the bond so that it
could be paid off much quicker, demonstrates
an unqualified and
unconditional commitment to their relationship. It is abundantly
clear to me that she trusted and loved the
defendant and regarded her
a true life partner. It is not surprising that when she saw the
“sms” sent by Kathlin,
she was devastated. I have no
doubt in my mind that when the defendant asked her to single her out
and be exclusively hers. Evidently
she took the relationship
seriously and regarded same akin to a marriage.
[28] The defendant’s evidence is fraught with improbabilities
and unreliable. Her evidence that she intended to keep the
Donnelly
property as her own exclusive property is unsustainable. The
totality of the evidence and common cause factors demonstrates
that
the plaintiff and defendant were life partners who were not only
committed to each other but formalised their commitment before
Reverend McLachlan on the 11
th
December 2004. In my view
the ceremony in church which was attended by some of the defendant’s
friends was intended to achieve
a measure of protection for their
relationship. The parties lived together and they agreed as to how
they were to share their
expenses.
[29] I am fortified in my view by the defendant’s admission
that indeed the plaintiff made substantial monthly payments albeit
according to the defendant was for a different reason. In my view
all the payments made by the plaintiff reflected in Exhibit
”A”
and Exhibit “B” of the common cause facts clearly shows
that they were not rental payments but payments
towards the bond.
These payments commenced when parties were still residing at the Von
Brandis Property and continued throughout
until the Donnelly property
was acquired.
[30] I agree with counsel for the plaintiff that it would be absurd
for the plaintiff to enter into a life long commitment and
yet share
no part of the property. The plaintiff’s evidence that she
paid for the minor child after care fees, assisted
with household
chores is another factor which militates against the acceptance of
the defendant’s evidence. The same cannot
be said about the
defendant. Her evidence that she intended to keep the property as
her own is negated by the objective facts.
She could not acquire the
property without the assistance of the plaintiff yet she wants to
exclude her. I find this evidence
to be illogical. This crucial
aspect of her evidence was not put to the plaintiff, it only emerged
during cross examination, this
is an afterthought or recent
fabrication. The suggestion that the plaintiff was a tenant or
lodger is not borne out by the facts
and evidence. I accordingly
reject it.
[31] I am accordingly satisfied that the criticism levelled against
the plaintiff regarding her failure to explain certain amounts
does
not detract from the reliability and veracity of her evidence. In my
view it would be asking the impossible to expect her
to remember and
keep proof of each and every item paid by her over a considerable
period of time (6 ½ years). The Defendant
also could not
provide other details of her payment.
[32] In conclusion, the plaintiff has succeeded in establishing on
the balance of probabilities the existence of a universal partnership
between her and the defendant and she is accordingly entitled to the
order sought.
I therefore make the following order:
1. It is declared that a universal partnership existed between the
plaintiff and the defendant and that the plaintiff and defendant
had
a fifty percent share in such partnership;
2. It is declared that the said partnership was dissolved with effect
from 1 July 2010;
3. Failing agreement between the parties within a period of two (2)
months (or such longer period as the parties may in writing
agree
upon) on the net benefit accruing to the plaintiff from the
partnership and the manner and date of delivery or payment of
such
benefit to the plaintiff;
3.1 It is ordered that a liquidator be appointed to liquidate the
said partnership;
3.2 Unless the parties agree in writing on the appointment of a
liquidator, the liquidator shall be appointed at the request of
either the parties by the Chairperson of the Law Society of the
Northern Provinces. The liquidator will have not less than ten
(10)
years experience;
3.3 The liquidator may call on either of the parties
mero motu
or at the request of one of them to deliver documents or records that
the liquidator may require;
3.4 The liquidator is authorised to realise the property situated at
89 Donnelly Street, Turffontein, to liquidate the liabilities
of such
property and to prepare a final account and to pay to the plaintiff
half of the net proceeds of the said property;
3.5 The costs of the liquidator shall be borne by the parties in
equal shares.
4. The defendant is ordered to pay the plaintiff’s costs of
suit.
____________________________
MATHOPO J
Judge of the South Gauteng
High Court, Johannesburg
Appearances:
For the Plaintiff
: Adv LL Norman
instructed
by : Tracy Sischy Attorneys
For the Defendant
: Adv AP Bruwer
instructed by :
Manfred Jacobs Attorneys
Date of
hearing : 02 November 2012
Date of
Judgement : 22 November 2012