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[2014] ZAGPJHC 413
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Bergman v Master of the High Court and Another (7712/2012) [2014] ZAGPJHC 413 (1 August 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE GAUTENG HIGH
COURT
(LOCAL DIVISION
JOHANNESBURG)
CASE NO:7712/2012
DATE: 01 AUGUST 2014
In the matter between
LOUISE
BERGMAN
.........................................................................................................
APPLICANT
And
THE MASTER OF THE HIGH
COURT
........................................................
FIRST
RESPONDENT
NADA LISA
RIHAOUI
................................................................................
SECOND
RESPONDENT
J U D G M E N T
MOSIKATSANA AJ:
INTRODUCTION
[1] This is an application for a
temporary interdict, to stay the confirmation of the first and final
liquidation and distribution
account by the first respondent, as well
as the distribution in terms of thereof, by the second respondent,
pending the institution
of an action by the applicant, against the
respondents, within 30 days of the date of the temporary order being
granted, on the
basis that the applicant had a universal partnership
with the deceased, which entitles her to claiming fifty percent from
the estate,
as the beneficiary, by reason of her cohabiting with the
deceased.
[2] The applicant seeks that the first
and final liquidation account of the deceased’s estate be
amended accordingly by the
second respondent.
[3] The applicant also brought an
application for the striking out of certain statements from the
second respondent’s affidavits
in that it is scandalous,
vexatious or irrelevant.
[4] The first respondent did not oppose
the relief sought by the applicant. He submitted that he was willing
to abide by the decision
of the court, provided that no cost order is
sought against him.
[5] The second respondent disputes that
a universal partnership was created between the deceased and the
applicant. And, that such
partnership if found to exist, entitles the
applicant to a fifty percent share of the deceased’s estate.
[6] The second respondent also opposed
the application to strike out.
FACTUAL BACKGROUND
[7] It is common cause that the
deceased, Franck karim Rihaoui, died intestate on 29 March, 2010. His
daughter, the second respondent,
was appointed executrix of the
deceased’s estate.
[8] On 30 August, 2011 the applicant
lodged a claim against the deceased’s estate based on the
alleged existence of a universal
partnership, in terms of which the
applicant, claims that she is entitled to fifty percent of the value
of the estate.
[9] The first respondent rejected the
applicant’s claim on 19 October, 2011. The applicant requested
the second respondent
to investigate her claim in accordance with
s
32
of the
Administration of Estates Act 66 of 1965
. The second
respondent failed to do so.
[10] On 2 December, 2011an
advertisement was placed in the Government Gazette stating that the
liquidation account was lying open
for inspection for a period of 21
days. On 19 December, 2011 the applicant objected timeously, to the
liquidation and distribution
account. If the applicant had not
objected, the first respondent would have been entitled to confirm
the account and the second
respondent would have been entitled to
distribute the deceased’s assets.
[11] The second respondent opposes the
application on the basis that the applicant has failed to establish
the existence of a universal
partnership and to satisfy the
requirements of an interim interdict.
REQUIREMENTS FOR AN INTERIM
INTERDICT
[12] Before she can succeed in
obtaining an interim interdict, the applicant must satisfy the court
that: she has a prima facie
right; a well- founded apprehension of
irreparable harm if interim relief is not granted and the ultimate
relief is granted; a
balance of convenience in favour of the granting
of the interim relief and that there is no other remedy.
Considering the discretionary nature of
an interim interdict these requirement are not discrete, they
interact and are, therefore,
not to be judged in isolation.
Prima facie right:
[13] The applicant’s submission
that she has a prima facie right in that a universal partnership
existed between deceased
and herself is based on the following
averments made by the applicant:
[13.1] At the time of the deceased’s
death on 29 March, 2010 he had been cohabiting with the applicant for
a period of twelve
years. They moved in together on 1 February, 1998
at 13 Drakenstein, Paulshof, Johannesburg. At which time they agreed
to form
a long term intimate and business partnership which entailed
pooling of their resources and expenses.
[13.2] In order to facilitate the
purchase of 13 Drakenstein, the deceased borrowed R 300, 000 from his
mother, Mai Wehbe. The house
was registered in the mother’s
name as the deceased was going through a divorce at the time.
[13.3] The applicant contributed
towards the renovation of the house at 13 Drakenstein and the
building of a cottage. The improvements
made increased the value of
the property by at least R500 000.00. Over the years, due to both the
efforts of the applicant and
the deceased, the value of 13
Drakenstein increased from R300 000.00 to R1 700 000.00.
[13.4] In 2003 the applicant and the
deceased applied for a joint life policy which they subsequently
decided against in favour
of building a property portfolio.
[13.5] They operated two businesses,
namely Nimba Trading Company Pty Ltd (Nimba) controlled by the
deceased and an interior and
house renovation business controlled by
the applicant from the house at 13 Drakenstein. Applicant sold her
4x4 to raise the start-up
capital for the two businesses. She also
contributed all her furniture for their common use. At the time the
deceased only had
a car, a PC and few personal items.
[13.6] In due course the businesses
grew. Applicant became increasingly involved in the administration of
Nimba. She agreed to close
down the interior decorating business as
requested by deceased, so that she could attend to the full time
management of Nimba.
She was responsible for the financial
management, human resources, supervision of all administration, the
general running of the
office and financial responsibility for orders
and shipping at Nimba. She had access to all the deceased’s and
the companies’
bank accounts. She made payments according to
her discretion. With the effluxion, of time the annual turnover of
Nimba increased
from R2.5 million in 1999 to R 91 Million in 2009 and
decreased to R 60million in 2010.
[13.7] The applicant and the deceased
also built a residential property portfolio through their joint
efforts. They paid themselves
salaries far below market value from
Nimba and used the profits to acquire new properties. In 2004 they
created another company
Matunda, mainly for offshore trade. At the
time of deceased’s death, applicant was responsible for at
least seventy per cent
of Nimba. The deceased was more involved in
Matunda.
[13.8] During their life together, they
presented themselves publicly as life partners. On 19 July, 2007 the
deceased wrote a letter
confirming that they were life partners. In
addition to her involvement in their business affairs, the applicant
carried out all
the domestic functions including the shopping,
cooking and supervision of the domestic helpers. She was apparently
introduced to
their acquaintances as Mrs Rihaoui.
[13.9] They created four trusts with
the aim of pooling their resources for their retirement. The trusts
were also to provide for
the deceased’s two children who were
studying in China and or Japan when he died.
[14] The second respondent disputes
that the applicant has a prima facie right or that she cohabited with
the deceased . According
to the second respondent’s version:
[14.1] There was no written
cohabitation or partnership agreement between the applicant and the
deceased.
[14.2] The deceased spoke to his
mother, brother and the second respondent on a weekly basis and he
also visited his family several
times a year. He openly discussed his
business and personal matters with the second respondent and his
family. He informed his
family that he did not wish to marry the
applicant, or to make her a shareholder in his businesses. That the
deceased, regarded
the applicant as no more than a girlfriend or
cohabitee.
[14.3] Wehbe, the deceased’s
mother, purchased the property at 13 Drakenstein. She allowed the
deceased to live there. She
and not the deceased and the applicant
built the cottage on the property.
[14.4] The applicant ran her own
business, Orange interior consultants. She closed it down in 2004 to
take up full-time employment
with Nimba. Her contributions at Nimba
were no more than those of an ordinary employee.
[14.5] Second respondent disputes that
the applicant was a signatory to any of Nimba’s accounts and
that the deceased and
Wehbe were the only signatories. She also
states that there were no joint bank accounts held by the applicant
and the deceased.
She notes that the applicant does not mention any
bank account held in her name to which the deceased had access. She
also states
that there are no powers of attorney or company
resolutions authorising the applicant to act on behalf of Nimba or
the deceased.
[14.6] Second respondent asserts that
the fact that the deceased and applicant co-habited for a lengthy
period of twelve years is
not sufficient for the court to infer the
existence of a universal partnership.
[14.7] Second respondent also disputes
that the deceased held himself out to be in a universal partnership
with the applicant and
that the letter allegedly written by the
deceased confirming the existence of the partnership between him and
the applicant is
not genuine.
[14.8] That the trust assets to the
extent that they existed, were financed by Wehbe and the deceased.
[14.9] All the above factors are said
to create ‘some doubt’ as to the existence of a universal
partnership between
the applicant and the deceased.
Balance of convenience
[15] The applicant argues that the
balance of convenience is in her favour and it requires that the
estate be preserved. She states
that if interim relief is not
granted, the estate will be distributed, and she will be faced with
the arduous task of having to
recover from beneficiaries who live
outside South Africa, in countries such as the Netherlands where it
is alleged the second respondent
and her brother currently live.
[16] The second respondent on the other
hand contends that the balance of convenience requires that the
estate be distributed for
the benefit of the intestate heirs and the
creditors. She argues that if interim relief is granted the estate
will be ‘frozen’
for an inordinately long period while
the applicant pursues her claim at trial and possibly even on appeal.
Irreparable harm
[17] The applicant argues that the
distribution of the estate amongst the heirs and the creditors will
cause irreparable injury
to her claim for a fifty percent share of
the estate and that the better option is to grant her interim relief
as the preservation
or “freezing” of the estate will not
involve irreparable harm to the second respondent.
[18] The second respondent insists that
if interim relief is granted, the estate will be ‘frozen’
for an inordinately
long period, while the applicant pursues her
claim at trial and possibly even on appeal and that this will
unfairly delay her right
to the inheritance.
No other remedy
[19] The applicant asserts that she has
no other remedy other than to seek interim relief.
[20] Second Respondent argues that the
applicant is not without alternative remedies. She asserts that the
applicant has a potential
unjust enrichment claim against the heirs
and that she may also seek a review in terms of
s 35(10)
of the
Administration of Estates Act. Second
respondent further asserts that
these alternative remedies may be pursued without restricting the
deceased estate.
[21] Second respondent finally states
that in view of the availability of an alternative remedy and the
balance of convenience favouring
her, the application ought to be
dismissed with costs.
Probabilities:
[22] In dealing with the issue of an
interim interdict pending the outcome of an action the correct
approach was enunciated in Spur
Steak Ranches Ltd v Saddles Steak
Ranch
1996 (3) SA 706
(C) at 714E in the following terms:
‘The proper approach is to take
the facts set out by the applicants together with the facts set out
by the respondents, which
the applicants cannot dispute, and to
consider whether having regard to the inherent probabilities the
applicants should, not could,
on those facts obtain final relief at
the trial.
It is also necessary to repeat that
although normally stated as a single requirement, the requirement for
a right prima facie established,
though open to some doubt, involves
two stages. Once the prima facie right has been assessed, that part
of the requirement which
refers to the doubt involves a further
enquiry in terms whereof the Court looks at the facts set up by the
respondent in contradiction
of the applicant’s case in order to
see whether serious doubt is thrown on the applicant’s case and
if there is a mere
contradiction or unconvincing explanation, then
the right will be protected. Where, however, there is serious doubt
then the applicant
cannot succeed.’
[23] Applying this approach to the
facts of this case, it is trite that in order to establish a prima
facie right, the applicant
need not do so on a balance of
probabilities. It suffices for the applicant to establish a prima
facie case even if it is open
to some doubt.
[24] On the principle enunciated in
Webster v Mitchell 1948 (1) (SA) 1186 at 1189 it does appear that the
applicant has succeeded
in establishing that a universal partnership
existed between the deceased and the first respondent and that the
balance of convenience
favours the preservation of the estate in that
if the estate is not preserved, the applicant will suffer irreparable
harm. The
applicant does not have an alternative remedy. The remedies
of unjust enrichment and a review in terms of
s 35(10)
of the
Administration of Estates Act, which
have been suggested by the
second respondent, are not feasible in this instance, because the
heirs reside in jurisdictions outside
South Africa.
[25] A final determination as to
whether or not the existence of such an alleged universal partnership
entitles the applicant to
a half share of the deceased’s estate
in terms of the
Intestate Succession Act 81 of 1987
or to seek
contractual remedies falls outside the ambit of this enquiry. It
falls to be determined by the trial court.
The applicant also made an application
to strike out and I found no credible basis for such an application.
ORDER
[26] In the result:
[26.1] Temporary interdict is granted.
[26.2] Application to strike out is
dismissed
[26.3] Costs reserved for trial.
T MOSIKATSANA
ACTING JUDGE OF THE HIGH COURT
COUNSEL FOR APPLICANT:
COUNSEL FOR FIRST RESPONDENT:
COUNSEL FOR SECOND RESPONDENT:
DATE OF HEARING 24 FEBRUARY 2014
DATE OF JUDGMENT 01 AUGUST 2014