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[2015] ZAGPJHC 259
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A v A (2013/00875) [2015] ZAGPJHC 259 (20 November 2015)

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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO.:
2013/00875
DATE:
20 NOVEMEBR 2015
In
the matter of:
[A………],
[D……]
.......................................................................................................................
Plaintiff
And
[A……],
[A……]
[G…….]
.......................................................................................................
Defendant
JUDGMENT
GAIBIE, AJ
Introduction
[1]
This
is an action for divorce launched by the plaintiff ([D…….]
[A…….]) against her husband [(A…….]

[A…….]).  For convenience I refer to them by their
first names throughout this judgment.  They were married
out of
community of property in terms of an antenuptial contract without
accrual.  It is on that basis that [D……]
seeks a
decree of divorce.  [A…….], on the other hand,
does not oppose the divorce per se, but he does however
oppose the
basis upon which it is granted because he claims that the numerous
assets, both movable and immovable acquired by him
before the
marriage are his, and those acquired by them during the course of
their marriage was the outcome of their joint efforts,
contributions,
energy, commitment and ultimately in consequence of a universal
partnership for their joint benefit.  For that
purpose he filed
a counterclaim to the action and seeks, inter alia, an equal division
of the estate
[1]
.
Separation
of issues
[2]
At
the commencement of the triaI, the parties agreed that only the
following issues
[2]
should be
separated out and determined:
a)
Whether the parties expressly agreed, in
the context of Alan’s insolvency, that he would transfer any
assets acquired by him
subsequent to the marriage to [D…….],
and in the event of a divorce she would be obliged to transfer the
assets to
him (‘
the first issue
’);
b)
Alternatively to the above, whether as a
result of his insolvency, the parties, on conclusion of the marriage,
entered into an oral
or tacit universal partnership in terms whereof
it was agreed that [D……] would hold all the assets
acquired during
the marriage in her name and in the event of a
divorce she would transfer half the assets to Alan (‘
the
second issue
’);
c)
In
the event of [A……] succeeding on either of the above
claims, whether the relevant agreement was designed to mislead
the
Master, the trustees or the creditors of Alan’s estate, and as
such was immoral and against public policy or in contravention
of the
provisions of the
Insolvency Act 24 of 1936
, rendering the agreement
illegal and
void
ab initio
and consequently precluding Alan from recovering what he has
transferred (‘
the
third issue
’)
[3]
.
[3]
This agreement was made an order of court.
In the determination of these issues, and for the purposes of the
defendant’s
case four witnesses testified, including [A…..],
Mrs Rose-Marie Dos Santos (a book-keeper, hereinafter referred to as
‘Ms
Dos Santos’), Mr Mark Fuhr (a certified financial
planner, hereinafter referred to as ‘Fuhr’) and Mr Marnus
Brits
(an accountant, hereinafter referred to as ‘Brits’).
Although [A……] and his witnesses were cross-examined,

the plaintiff did not testify, nor were any witnesses led on her
behalf.
[4]
Before I proceed to examine the facts in
this matter, it is necessary to make certain preliminary comments
about the pleadings and
the stated case of the parties.
The
pleadings
[5]
[D…….] commenced her action
by way of a summons and particulars of claim which contained six
paragraphs of averments,
the first three of which described the
parties and confirmed the jurisdiction of this court, and the latter
three recorded the
nature of their marital regime, the issues that
led to the breakdown of the marriage and the singular relief of a
divorce decree
sought by her in consequence thereof.  Given the
paucity of any further averments in the particulars of claim one
would be
forgiven for assuming that they must have led entirely
separate lives during their marriage with no consequential physical,
proprietary
or financial effects.  But before one reaches that
conclusion, it is necessary to turn to the next set of pleadings
which
is [A….’s] plea and counterclaim.  Upon a
careful reading thereof one is for the first time made aware of the

fact that one or both of them had accumulated a massive estate during
the course of the marriage, all of which was registered in
[D……..’s]
name or in entities in which she had a controlling interest.
[6]
In essence, [A……] claimed
that both the marital regime, as well as the acquisition,
registration and management of
assets accumulated by them during the
marriage were dealt with in the context of his sequestration.
For instance in paragraph
2 and 3 of his plea, Alan states that:
‘
2.1
The defendant avers that on
24 October
1995
his estate was placed into
final
sequestration
by the above Honourable
Court.
2.2
As a consequence
, the plaintiff and the defendant agreed that
they would conclude an
antenuptial contract
in terms whereof
community of property, profit and loss would be excluded and that the
accrual system would not apply to their
marriage.
2.3
The express intention of the parties was that
as
the defendant was an insolvent
,
he would
transfer
and/or permit assets acquired
by him subsequent to the marriage to be
registered
in the name of the plaintiff
[4]
,
who would hold same …… for his sole and exclusive
benefit.
2.4
…… in the event of a divorce, the plaintiff would be
obliged to transfer
the assets nominally held by her, on behalf of
the defendant, to the defendant.
……………
..
In
the alternative to paragraph 2
3
As
a result of the defendant’s insolvency
,
the parties, on conclusion of the marriage, entered into an oral or
tacit universal partnership in terms whereof it was agreed
that the
plaintiff
would hold all the assets
acquired by the parties jointly during the marriage in her name.
In the event of a
divorce
,
the plaintiff …….. Would
transfer
half of the assets
[5]
so acquired into the name of the defendant.’
[7]
Alan
makes similar averments in his counterclaim and he repeats them in
several applications that were heard by this court before
other
judges in which they sought various kinds of relief against each
other, and in at least one such application, where urgent
relief was
granted in favour of [A……] against [D…..] aimed
at preserving the estate pending this action
[6]
.
Given the vastly different approaches adopted by [D…..] in her
particulars of claim and by [A…..] in his plea
and
counterclaim, it is not surprising then that [D…..], in the
main: denied the averments made by [A……] in
his
pleadings; asserted that she insisted on the marital regime; claimed
that she had no knowledge of his insolvency; and averred
that the
purported agreement, if any –
‘
7.2.1
…….. Was designed to mislead the Master and/or the
trustee of his insolvent estate and/or
his creditors and as such was
immoral and/or against public policy and/or contravened the
provisions of the
Insolvency Act 24 of 1936
.
7.2.2
As a consequence the alleged agreement was illegal and therefore void
ab initio
.
7.2.3
the defendant is therefore precluded from recovering what he has
transferred (if anything) to the
first and second defendants
alternatively, the plaintiff.’
[8]
It was in the context of the vastly
different stated cases that [D…..] chose not to testify nor to
lead any witnesses on
her behalf.
[9]
The facts in this matter are largely common
course, it is the inferences that should or should not be drawn from
these facts which
are in dispute.  In essence, I am required to
determine the
three issues
(which have been separated out) based on the evidence led during the
trial.   During the trial proceedings it was apparent

however, that the defendant’s case was premised entirely on the
second issue
,
and in consequence thereof this judgment is focussed on a
determination of the
second
and
third
issues only.
The
principle of a universal partnership
[10]
The
jurisprudence developed by our courts in
Fink
v Fink
[7]
,
Muhlmann
v Muhlmann
[8]
and
V
(aka L) v De Wet
[9]
,
all establish that parties who are married out of community can by
their conduct provide facts and circumstances which, in the
absence
of an express agreement, would justify the inference that a
partnership existed between the spouses.  Whether or not
such a
partnership is established would depend on whether three essential
facts were present and whether, on a holistic assessment
of all of
the evidence, it was more probable than not that a tacit agreement
had been reached
[10]
.
The three essentials are that: a) each of the partners brings
something into the partnership, whether it be money, labour
or skill;
b) the business should be carried on for the joint benefit of the
parties; and c) the object should be to make a profit
[11]
.
In order to determine whether such a partnership existed, it is
necessary to traverse the facts.
Introduction
to the factual context and the assets
[11]
Before I attempt a chronological account of
the marriage and the circumstances in which the assets in the estate
were acquired and
accumulated, a summation of the relevant assets,
their location and the details of their registration and ownership is
both convenient
and prudent at this stage.  For reasons that
will become apparent later, I distinguish between the properties that
[A…..]
inherited from his mother, and those that were
accumulated during the marriage.  [A……] inherited:
a)
99 percent of his late mother’s
interest in Roselina Properties CC which owns an immovable commercial
property at [2…..]
[L……. ] [Street, Kempton Park
and which previously vested in a testamentary trust, the Rose-Selina
Eileen Agliotti
Trust for 10 years after her death on 13 September
1993 (‘the Kempton Park factory’).  Danica became
the sole
member of Rosalina Properties CC in June 2008;
b)
[2……] [A…….]
Road, [L…….], a residential property which was
bequeathed to Alan by his
late mother and held in the testamentary
trust for a period of ten years (‘the Lonehill property’).
The Lonehill
Property was transferred to the Cokaloka Trust in July
2008.  [D…….] is the only remaining trustee of the
Cokaloka
Trust;
c)
an
abundance of furniture from his late mother which has been used by
[D…..] in the Parkmore Guesthouse
[12]
(‘the Parkmore Guesthouse furniture’).
[12]
During their marriage, the following
properties were acquired:
a)
in 2002, 138 7
th
Street, Parkmore, from which [D……] conducts the Luna
Serena Guesthouse (‘the Parkmore Guesthouse’).
This
property is registered in [D…….]’s name and the
guesthouse business which operated from these premises
is registered
under a corporate entity known as Luna Serena CC.  [D……]
is the controlling member of this CC;
b)
in 2004, [1…..] [G…….]
Road, [B……], a property bought for the purposes of an
investment (‘the
Bryanston property’).  This
property was registered in [D…..’s] name, and the
rentals received in respect
of this property was paid into Moneyline
1398 CC.  [D……] is the controlling member of this
CC;
c)
in 2005, Unit [4…..] [B……..],
[B……] in Sandton, a property bought for the purposes of
an investment
(‘the Broadlands property’).  This
property was registered in [D…..’s] name, and the
rentals received
in respect of this property was paid into Moneyline
1398 CC;
d)
in 2006, 18 Holt Street, also a guesthouse
currently conducted by [A…….] (‘the Holt Street
Guesthouse’).
This property was registered in the name of
the Cokaloka Trust in respect of which [D……] is the
only remaining trustee.
[13]
There were at least four other properties
that were bought and sold during the early days of the marriage,
prior to the properties
listed above, and there are two further
properties in Sandhurst that were purchased during 2009 and are
registered in certain trusts
(‘the Sandhurst properties’).
The Sandhurst properties were not referred to in the pleadings, and
although evidence
was tendered in respect thereof, those trusts were
not joined as parties to the proceedings.  Given the conclusion
that I
reach in this judgment, the fact that the Sandhurst properties
were not explicitly specified in the pleadings or the fact that the

trusts that owned them were not joined, is in my view, of no
relevance.
[14]
It
is also opportune at this point to record that it was contended by
Advocate Feinstein (‘Ms Feinstein’) - on behalf
of [D…..]
- that the Cokaloka Trust
[13]
was not joined properly to these proceedings
[14]
and consequently that this Court could not make any ruling in
relation to any properties that may be held by that trust.
Ms
Feinstein’s assertion in this regard was effectively ‘made
from the bar’, and the issue was not raised properly
in terms
of the rules of this Court either by way of a special plea or as an
‘irregular proceeding’ or indeed in any
other form.
In fact, and despite this assertion, [D…….]pleaded to
the counterclaim in both her personal capacity
and in her capacity as
nomino officio of the Cokaloka Trust.  The Cokaloka Trust was,
in my view, therefore properly before
me.
A
chronology of the facts
[15]
As indicated earlier in this judgment,
[D….] did not testify and no other evidence was led on her
behalf.  The chronology
of the facts set out below emanates from
the evidence tendered by [A…….], and three witnesses on
his behalf, taking
into account where relevant the cross examination
conducted by Ms Feinstein.
[16]
As the narrative of the story between
[D…….] and [A…..] unfolds, the reader will find
that the facts present
a complex web of acquisitions coupled with the
establishment of a plethora of corporate entities which owned some,
if not most,
of the assets and businesses, and that such ownership
had little, if anything, to do with the reality of ownership or
indeed control.
It is an understatement to suggest that this is a
complex story, and in an effort to make sense of this matter, I do
not intend
to record all of the facts, and will relate only those
aspects that demonstrate the salient aspects of this relationship.
1993
- 1994
[17]
The story begins in late 1993 or early 1994
when [A……] had already owned and conducted the business
of seven clothing
stores, which traded under the name ‘Ragazzi’,
and which were situated at Rosebank, Hyde Park, Sandton City and
Meucklenek
in Pretoria.  He ran these businesses for several
years, and then he sold them and opened a coffee shop in the Eastgate
Shopping
Centre in Bedfordview (‘Eastgate’) called
‘Tatlers’ and a clothing store called ‘Gilli’,
which
was coincidentally situated next to Danica’s clothing
store.  He got to know her there over time and in his
discussions
with her he learnt that she had serious personal and
financial problems.  As they became friendlier with each other,
she invited
him to her house in Cyrildene for a meal.  She did
not own a car, so she walked each day from Cyrildene to Eastgate to
run
her clothing store.  He said that her living conditions were
appalling, there was hardly any furniture in her house with the

exception of the maid’s quarters where there was a bed.
She used ‘sheets’ as curtains and her shower facilities

were - in his words - ‘pathetic’, and the only thing of
value in the house was a set of ‘classicware’ pots.

The sheriff had repossessed everything in the house, including her
sewing machines, because of her husband’s financial woes,
and
he had left her in serious financial debt. Her husband had already
left the marital home with her daughter [S……],
and she
was living in the bonded marital home in Cyrildene with her son
[V……].
[18]
Upon [D……’s]
request, [A……] introduced her to an attorney to assist
her with her divorce, and
he specifically instructed the attorney to
ensure that her sewing machines were returned to her.  [A……]
also
assisted her in various other ways.  For instance, he
facilitated her trip
to Paris, to visit her cousin, who was in the fashion trade so that
she could get clothing to sell in her shop.  During her
absence,
he revamped her cottage, he put up curtains and he renovated the
bathroom at his own expense.  He also bought and
installed a
television set.  In respect of her financial debts, particularly
in respect of monies that she owed to creditors
for clothing supplied
to her store, he negotiated terms for the repayment of the debts that
were suitable to her and to them.
[19]
Once her
divorce was finalized, he understood that the debts that emanated
from the bonded house in Cyrildene, her clothing store
at Eastgate
(which included creditors and outstanding rental to Liberty Life, the
landlord) and an overdraft facility, were her
responsibility.
As time went on they developed a friendship and he continued to
assist her both financially and physically.
Apart from the
renovations to her home referred to earlier, he also became
physically involved in improving her home. For instance,
he undertook
extensive work to her pool and he taught her gardener how to fix and
improve the garden. He assisted her with the
reparation of the
parquet flooring in one section of her house, and he found tenants
for her home.  She eventually sold the
house in Cyrildene, and
the proceeds of the sale were not brought into her marriage to [A……]
or in any of their business
endeavours.
Rosalina
Clothing CC
[20]
During that
time and still in 1994, they closed their respective businesses in
Eastgate and they decided, in light of [D……’s]

sewing expertise and both their experience in the clothing industry,
that they would use a section of the Kempton Park property
to develop
a business in which they would manufacture exclusive corporate
clothing products for the specific needs of their clients.

[A……] formed a close corporation called
Roselina
Clothing CC
for the business, and he was its first member. The CC’s
business address was the Kempton Park factory and its registered

office was the Lonehill property, both of which he had inherited from
his mother.
[21]
Once her
machines were delivered to the Kempton Park factory, they started
looking for opportunities, and his ex-partner ‘Lynne’

brought in their very first contract to make corporate clothing for
Lancome, an established cosmetic company.  This contract
was
followed by others for corporate clothing. They were, according to
him, both involved in the creation, establishment and running
of this
business.  They used his premises and her sewing machines to
make the clothing, and they employed an assistant ‘Doris

Kubheka’ (‘Doris’) as a seamstress.  [D……]
got involved in the manufacturing aspects of the
corporate clothing
business, and since she was not computer literate, he dealt with the
administrative and accounting aspects of
the business, he sourced new
contracts and he was responsible for buying the materials.
Occasionally she accompanied him
to choose and purchase the
appropriate materials.
[22]
During the
initial phase of the corporate clothing business, she and Vanya
resided in Unit 1 of the Kempton Park factory for a period
of
approximately three to four months.  Thereafter, she and Vanya
moved in with him at the Lonehill property. And once he
had
transformed the garage into an appropriate space for the business,
the business operations were conducted from there from 1995
until at
least 2008, when it was effectively discontinued, and they had
commenced another business venture. He did not draw a salary
from the
business.  However, the business’ telephone costs were
paid by Roselina Properties CC, so too was [D……’s]

occasional salary and sometimes Doris’ salary.  For the
entire period of the existence of the corporate clothing business,
it
was conducted first at the Kempton Park property and then at the
Lonehill property with no payment of rental, utilities or other

overhead costs, apart perhaps for the purchase of materials, some of
Doris’ salary and some of [D…..]’s salary,
and
even then details of the nature of these expenses were not provided.
The payment of expenses and debts owed by one entity,
in this case
Roselina Clothing CC, by another entity, in this case Roselina
Properties CC, is a recurrent theme in this narrative,
one that I
will return to from time to time, as the narrative unfolds.  For
convenience, I refer to it as the ‘cross-subsidisation
of
costs’.
[23]
To all
accounts, the corporate clothing business was a successful one for
some years, and even though it was suggested to [A…..]
during
cross examination that this was a business that was run entirely by
[D…..], and that it was in substance her business,
no such
evidence was tendered.  In fact [A….’s] evidence
about how this business was run, his role in it and
the fact that no
rental or any other expenses was charged to the business or received
by him during its existence was largely uncontested.
1995
and Alan’s sequestration
[24]
During 1995,
[A…….] encountered financial difficulties of his own.
He explained that during 1989, while he had
the Regazzi stores, he
bought a stand in Benmore Gardens near Sandton, and he had
successfully paid the deposit and the bond repayments
for about 4
years, when he had to find the monies to settle the estate or death
duties, and related costs, that emanated from his
mother’s
death.  As a result, he took a loan from ABSA Bank for that
purpose and managed to repay it in full.
However, he was unable
to meet his obligations in relation to the Benmore property, and he
owed Liberty Life monies for rentals
in relation to his coffee shop
‘Tatlers’.  Apart from repossessing the stand and
the furniture in Tatlers, Standard
Bank obtained a final
sequestration order against him in October 1995.
[25]
By this time
[A……] and [D…..] had already been living
together in Lonehill.   Whether or not she
knew about his
insolvency became a source of great contention during the trial
proceedings.  [A……] consistently
maintained both
in his pleadings and in his evidence that she knew he was insolvent
because their marital regime and their business
affairs were premised
and conducted on that underlying fact.  In that regard, he
testified that he had obtained legal advice
from his attorney to get
married out of community of property and with an
antenuptial
contract. And at that
stage they were, in any event, conducting a profitable corporate
clothing business together from his premises
and if he had discussed
his insolvent status with Ms Dos Santos, it seems almost unfathomable
that he would not have discussed
it with [D…..].  Ms Dos
Santos testified that [D……] knew about Alan’s
insolvency but she was not
clear about precisely when this came to
her knowledge.  And although it was suggested by Ms Feinstein to
Ms Dos Santos that
[D……] that did not know about his
insolvency at the point at which they got married, this version was
not only contrary
to [D…..s] plea in which it was recorded
that she did not know about his insolvency at all, it was also not
supported by
any evidence, since she did not testify.
[26]
Importantly
however,
Fuhr,
the independent financial planner, testified that he met [D…..]
and [A…..] together during 2004, and assisted
them to set up
three trusts: the Cokaloka Trust, the Sasha Trust and the Vania
Trust.  He also drafted their wills in accordance
with which all
of their assets would go into the trusts.  Fuhr testified that
he consistently received instructions from both
[D……]
and [A..….] and he met them together to obtain such
instructions.  According to him, [A……]

deliberately did not become a trustee of any of the trusts as he was
insolvent and they had intended that he would become a trustee
once
he had been rehabilitated. Fuhr recalled one property in particular,
the Parkmore Guesthouse
[15]
and stated that it was their intention to build up an estate
together.  In the absence of any evidence from [D…..],
it
is apparent from the evidence given by [A……] and that
of Fuhr, and on the basis of the facts set out above, that
in all
probability she must have known about his insolvency.  Fuhr’s
evidence, I might add, was in the main not contested.
[27]
I return now to the narrative of the
chronology.  As indicated above, Alan was the first member of
Rosalina Clothing CC which
was registered in 1994.  He
explained, that in the context of his subsequent sequestration and
[D…….’s]
financial difficulties, which emanated
from her previous marriage and her financial debts, he did not want
to the place [D……’s]
sewing machines in jeopardy,
so he requested Ms Dos Santos to replace him as the member of the CC
in 1996.  At that stage,
the bulk of the assets in that business
was the machinery and some materials that they had bought for the
purposes of the corporate
clothing business.  During the
existence of the corporate clothing business, he received income from
Rosalina Properties CC
which also contributed immensely towards the
expenses of Rosalina Clothing CC, and it provided loans to him and to
[D………]
in the amount of R200,000.00.
1997
- the marriage, change of membership of Rosalina Clothing CC and the
Seapoint property
[28]
In the context of his sequestration, and
upon the advice of his attorney, he got married to [D….] in
1997 on the basis of
an antenuptial contract without the accrual.
Once they were married, he said that [D…..] insisted that she
wanted
to be the only member of Rosalina Clothing CC.  At that
point they had a happy marriage, so he had no reason to distrust her,

or not to yield to her request and to replace Ms Dos Santos with her
as the controlling member of the CC because “
they
were equal partners in this business
”.
This change in the membership of Rosalina Clothing CC happened soon
after their marriage in 1997.
[29]
Having secured [D………’s]
sole membership of Rosalina Clothing CC, they shifted their focus on
acquiring
and developing a property portfolio. It was Fuhr who
testified that it was [D…….] and [A……’s]

common intention or agenda to build up a property portfolio together,
and under cross-examination, he explained that it had been
agreed
between them that their assets could not be registered in [A…….’s]
name, from an asset protection point
of view.  At the risk of
repetition, and for the purpose of repeating the point, Fuhr’s
evidence in this regard was
not challenged nor was a contrary version
placed before him for his comment.
The
Sea Point Property
[30]
Returning now to the narrative and the
period after their marriage in 1997.  While they were still
conducting the corporate
clothing business from the Lonehill
property, he recalled that they did a quote for corporate clothing
for Namibia Air.  He
flew down to Cape Town with [D……..’s]
daughter, [S…….], to present the quotation and to do
the
presentation.  At that point it seemed almost 80% certain
that they would reach a deal with Namibia Air. In anticipation of

that deal, he raised the prospect of acquiring a property in Cape
Town to facilitate doing some of the CMT work (a colloquium for
cut,
make and trim aspects of the clothing business) over there.  He
testified that pursuant to their discussions, they subsequently

bought an apartment on the 1
st
Floor in a unit on Marais Road in Sea Point (‘the Sea Point
Property’) and registered it under Rosalina Clothing CC.

Whilst the purpose of the acquisition was related to the corporate
clothing business, and when the proposed deal with Namibia Air
did
not materialise, the property effectively became a “holiday
home”.  They stayed in the Sea Point Property
whenever
they were in Cape Town, so did [S…….] and her husband
and even [D……’s] ex-husband.
[A……]
stated that he had furnished the apartment with furniture from the
Lonehill house and that he had left a car
and a motorbike there for
their collective use.  The bond was serviced by Rosalina
Clothing CC, and when they sold it approximately
four years later,
the proceeds or the profits of the sale went into Rosalina Clothing
CC.
No
23 and 101 Kilcullen Estate, Bryanston
[31]
After the sale of the Sea Point Property,
they bought two properties in Bryanston, unit numbers [2…..]
and [1……]
[K……] [E……] in
[B……].  At the time of these acquisitions, they
established two close
corporations: Centreline Property CC and
Moneyline 1398 CC.  Unit number 23 was registered under
Moneyline 1398 CC in which
[D……] eventually became the
sole member.  Unit number 101, on the other hand, was registered
in the name of
Rosalina Clothing CC.  To the extent that it was
necessary, Alan fixed or repaired the units, painted them, found
tenants
for them and managed the leases.  The bonds were
serviced by the rentals during their tenancy and at other times they
were
serviced by Rosalina Clothing CC.  This is, once again,
demonstrative of the theme of cross-subsidisation of costs, from one

entity to another referred to earlier.  In this case, and
despite the registration of one of the units in Moneyline 1398 CC,
it
was Rosalina Clothing CC that subsidized the bonds in respect of both
properties at relevant times. At some point thereafter,
A……..
marketed and eventually sold the two units through Centreline
Property CC, an entity that he had established
and used for the
purposes of administering the rentals from the various properties and
for his work as an estate agent. The proceeds
of these sales went
into Rosalina Clothing CC and Moneyline 1398 CC respectively.
Ex-husband’s
unit  - the Bruma Property
[32]
The next acquisition was a one bedroom
apartment situated in Bruma near Bedfordview.  It was owned by
[D……’s]
ex-husband who could not maintain the
bond repayments.  Before ABSA attempted to repossess the
property, [A…..] intervened
and by agreement with ABSA they
acquired the property, in the name of yet another entity known as
Multilayer Trading CC in respect
of which [D…….] was,
once again, made the sole member.  Needless to say, the property
needed to be fixed
or repaired, painted and developed or
maintained in order to secure tenants for the property.  [A…..]
did all of this
and they kept the apartment for approximately four
years during which time it was rented out to various tenants.
Presumably,
the rental went towards the bond repayment although this
is not clear from the evidence.  After the four year period,
[A……]
sold the property through Centreline Property CC
but he was unable to recall whether the proceeds went into Moneyline
1398 CC or
Rosalina Clothing CC, and at that point Multilayer Trading
CC became dormant.
[33]
In light of the facts so far, it is
apparent that [D……] and [A…..] acquired
immovable property and then sought
to register ownership thereof
through different corporate structures.  And in respect of each
of the CCs mentioned so far
with the exception of Centreline Property
CC, only [D…..] was made the sole member.  Except for the
Sea Point Property,
all the other properties acquired thus far -
inclusive of those in Kilcullen Estate and the Bruma Property - were
rented out, and
the rentals contributed towards the bond repayments.
In between or in the absence of any tenants, it appears that the
fall-back
position was that Rosalina Clothing CC would absorb the
costs.  From time to time, and especially in the early stages of
the
corporate clothing business, Rosalina Properties CC
cross-subsidised the costs of Rosalina Clothing CC.  This
approach to
the acquisition, management, cross subsidisation and
eventual sale of the properties, persisted in my view, throughout the
marriage,
with one difference: that is, that the majority of the
properties that were acquired from about 2002 onwards were not sold,
but
retained.   In essence though, they continued to
acquire properties, some of which were housed in corporate entities,

and much of it was very reminiscent of the agenda that they had
conveyed to Fuhr.
2002
– the Parkmore Guesthouse
[34]
After the sale of the Bruma Property,
perhaps the most significant acquisition was the property situated on
[1…..
th]
Street, [P……], referred to earlier as the Parkmore
Guesthouse.  This property was acquired on 29 November 2002,

after Alan saw the advert for the property in the Sunday paper.
After he fixed and painted the property, he secured various
tenants
for it for a period of three years.  This property, like the
other properties was serviced by the rentals received
over this
period.  At the end of the third year, he suggested and she
agreed that they should undertake major renovations
of the property
to convert it into an upmarket guesthouse in anticipation of the 2010
world cup.  He stated that he managed
the renovations which
involved massive construction work, including the extension of
certain rooms, the removal of tiles, new ceilings,
a significant
amount of plumbing and electrical work, the construction of a new
pool, installation of air conditioners and the
replacement of the
kitchen.  He described the renovations as nothing short of a
major reconstruction effort and it took up
90% of his time.
Both he and [D……] were involved in the design of the
Guesthouse, and for that purpose they
regularly looked through
magazines and collected features and then worked with the architects
to achieve a certain design and style.
[35]
When all of their efforts were completed
they started trading as a Guesthouse during 2008.  Bearing in
mind that the corporate
clothing business ran initially from the
Kempton Park property and thereafter at the Lonehill property from
approximately 1994
to 2008, that business had a lifespan of some
thirteen or fourteen years.  When the Guesthouse began its
operations in 2008,
the corporate clothing business effectively came
to a standstill.  The Parkmore Guesthouse property was
registered in [D……’s]
name.  It was funded
initially through the rentals that they had acquired in the first
three years and later by Rosalina Clothing
CC.  It was furnished
with the furniture that Alan had inherited from his mother.
Once again, and just as in the examples
given prior to this, there
was a cross-subsidisation of costs, not only of the bond but also of
the furnishings (which included
exotic chandeliers and expensive
furniture).
[36]
He managed the reservations for the
Parkmore Guesthouse, and for that purpose he used a special software
program.  He was also
responsible for the website and he dealt
with the administrative and financial aspects of the business.
Once again, and in
an effort to ring fence this business, a close
corporation was established on 3 December 2009 in the name of Luna
Serena CC for
the purposes of conducting the Parkmore Guesthouse
business and in respect of which [D……] was the only
member.
The Guesthouse was fully booked during the 2010 world
cup, they both managed the business, and by all accounts they made a
formidable
profit.  The Parkmore Guesthouse continues to run,
and in light of the deterioration in the marital relationship, Danica
currently
manages the Guesthouse.
2002
to 2004
[37]
During this period and prior to the events
that occurred in relation to the Parkmore Guest House, D……
wanted a separate
family trust.  They both approach Fuhr and
together they created three trusts: the Cokaloka Trust, the Vanya
Trust and the
Sascha Trust all of which had been set up in 2004.
Alan did not become a trustee of any of these trusts on Fuhr’s
advice.
In the circumstances Fuhr, [D……] and Ms Dos
Santos were the trustees in relation to the Cokaloka Trust.
They
were also the trustees in relation to the Vanya Trust.
However, it was [D……], her daughter Sandra and the
latter’s
husband Patrick who were the Trustees of the Sascha
Trust.  [A……] was and continues to be a
beneficiary of the
Cokaloka Trust.  Although all of these trusts
had three trustees initially, [D……..] is the only
remaining and
controlling trustee. For the moment, it is necessary to
move on to the next event that occurred.
2005
- 146 Grosvenor Road, Bryanston
[38]
[A……] testified that he and
[D……] drove down Grosvenor Road on a Sunday when they
saw the ‘
for sale
’
sign at 146 Grosvenor Road, Bryanston.  He stopped the car, they
went in and had a look.  The property was an
acre and although
it required some work he thought that it had potential.  They
agreed to purchase the property for approximately
R1.3million and he
agreed that the property should be registered in [D……’s]
name.  Once the property had
been purchased, he fixed up the
pool, the property, built a wall around it and got it rented for
approximately R17,000.00 to R19,000.00
a month.  When the one
tenant departed he arranged further tenants, and the rental in
respect of that property was paid into
the Moneyline 1398 CC
account.  The issue of cross-subsidisation of costs was once
again raised in this context.  In
this regard he testified that:
“
If
I may just add regarding the Moneyline account.  That account
was used…was primarily for income of rentals together
with the
Centreline Property CC account.  Those two accounts we used for
rental incomes.  When the time came to pay bonds,
we paid bonds
basically from Moneyline as well as from Luna Serena Guesthouse and
would transfer funds from Centreline for example
into Moneyline in
order to meet the bond payments”.
[39]
It is in my view clearly apparent from the
facts so far that despite the creation of various close corporations
and trusts, there
was an emerging trend, if not a clear design and an
intention to cross subsidise the costs of the various acquisitions
(from one
entity to another) and to create what seemed to be a form
of corporate security for property and business that might otherwise
be subject to the Master’s or the Receiver of Revenue’s
scrutiny.  If this is not clear to the reader so far, then
it is
necessary to unpack the narrative further.
2005
- Unit 46 Broadacres in Sandton
[40]
In February 2005 just a few months short of
Alan’s automatic rehabilitation from his status as an
insolvent, he testified
that they bought Unit 46 in this complex off
plan which they had read about in a newspaper.  The property was
registered in
[D……’s] name, and he testified that
he had found the tenant, one Irene Kavamba, negotiated the rent,
concluded
the lease agreement and informed [D……] what
rental was payable into the Luna Serena bank account in respect of
which
[D…….] had full control.  When the first
lease agreement had come to an end, he concluded a further lease
agreement
with Irene Kavamba and at some stage thereafter she stopped
paying the rental and she left the property in a dismal condition.

Apart from attending to the property and fixing it up, he also
secured another tenant for the property and instituted action against

Kavamba for outstanding rental.
2006
– the Holt Street Guesthouse
[41]
In 2006 he sourced the next Guesthouse,
that was the property on Holt Street.  It was at this time that
he was still busy with
the reconstruction of the Parkmore
Guesthouse.  He said that whilst driving on Holt Street one day,
he noticed a ‘
for sale’
sign
on the property.  He called the number, spoke to an Italian
gentlemen, made arrangements for him to bring [D…….]
to
see the property and they agreed that the property should be bought
and should be registered under the Cokaloka Trust.
According to
him, the bond was serviced through the income from Rosalina Clothing
CC.  The house stood dormant for approximately
2 years because
he said that [D…..] was of the view that they should only move
onto the Holt Street project once they were
done with the Parkmore
Guesthouse.  In the circumstances he only began renovations in
respect of the Holt Street property
in approximately 2007.
[42]
This too was a major reconstruction
effort.  He physically got involved in the varnishing of all the
wooden frames in the property,
and the building of a wooden deck.
But in order to undertake the renovations in relation to this
property and to furnish
it, they required capital.  For this
purpose, he secured a bond of R2 million on the Lonehill Property
from BOE Bank in November
2006. In light of the fact that the bond
was raised in relation to the Lonehill property, that property too
was transferred to
the Cokaloka Trust in 2008 and a value of R1.6
million was placed on the property for transfer duty purposes.
There was no
evidence that either [D…….] or the
Cokaloka Trust paid this price in relation to the Lonehill property.
In
any event, this Guesthouse, like the Parkmore Guesthouse, was
fully booked during the world cup period and they had to house the

additional guests at the Bryanston property, the Broadlands property
as well as the Lonehill property.
[43]
In respect of this Guesthouse too, he was
responsible for the reservations and the administrative and physical
aspects of managing
it.  During the period of the world cup, he
spent his days at the Holt Street Guesthouse and attended to guests
at the Parkmore
Guesthouse at night.
Change
of membership of Rosalina Properties CC
[44]
As indicated earlier in this judgment, in
1993 when his mother passed away, Alan inherited two valuable
properties from his mother’s
estate: the Kempton Park factory
and the Lonehill property.  Both properties were unencumbered.
The Kempton Park factory
was owned by a close corporation in respect
of which his mother was previously the sole member, known as Rosalina
Properties CC,
and after her death and because of Alan’s
sequestration at the time, his mother’s executor, Mr Gordan Day
became the
sole member of the CC.  Quite unequivocally, Alan
stated in his evidence that he in fact “
controlled
Rosalina Properties CC with regard to the tenants and the rentals
”.
In doing so he also signed the cheques to make the necessary payments
to the local municipality and to other creditors.
In any event,
and at some stage later, Mr Day informed him that he wanted to retire
and when he resigned, Alan agreed that D……
would become
the controlling member of Rosalina Properties CC at some stage in
2008 or 2009.  Given the deterioration of their
marriage, this
Guesthouse is currently being managed by Alan.
2009
- 606 and 512 Sandhurst Towers
[45]
These units were the final two acquisitions
during the course their marriage.  A………
testified that he
saw the advertisements for these properties in the
newspaper.  They bought them off plan in 2009, and even though
these units
were registered under the Vanya Trust (Unit 606) and the
Sascha Trust (Unit 512), he played an integral role in obtaining
corporate
tenants for these properties and concluding lease
agreements for both. It was A…….’s evidence that
he managed
the leases for the Sandhurst Properties and he signed the
leases on behalf of those trusts, without a resolution.  But
this
fact comes as no surprise in the overall scheme of things.
A…... managed all the leases in respect of all the properties

referred to in this narrative, without the necessary authority and
clearly with D…..’s acquiescence. The rentals from
these
properties went into the Luna Serena account, including the deposit.
Once again, the theme of the cross-subsidisation
arises, this time
however it is monies belonging to the Trusts which were received and
earned by another entity, without any authority.
Other
issues
[46]
In addition to their business dealings, it
was clear from A…..’s evidence that he played a
significant role in D…….’s
personal life.
He paid for Vanya’s school fees, his education and his
rehabilitation costs.  He said that in 2000,
he and D…..
went to visit her brother in Serbia and in 2008 he invited her
brother to South Africa at his own cost.
During the course of
their marriage and once the corporate clothing business was off the
ground they stayed at the Lonehill property.
Thereafter and
once the Parkmore Guesthouse was underway they occupied a room at
that property.  Whilst they were together
he estimated that they
required at least about R80,000.00 a month to service the bonds and
that they had not defaulted on their
obligations.  According to
him, once they had separated things had fallen apart.  D………
attempted
to transfer some of the properties referred to in this
narrative and he brought an urgent application to stop her from doing
so
pending this action.
[47]
Whether the evidence led in this case
amounts to prima facie evidence of a universal partnership, and
whether it is converted to
proof of a partnership on a balance of
probabilities, depends on the applicable legal principle and its
application to the facts.
In
Dreyer v
Sonop Beperk
1952 (2) SA 392
(O),
the court articulated the relevant principle as follows:
‘
There
is no doubt that the amount of evidence in a case depends very much
on the circumstances.  It was pointed out by Sir
James
Rose-Innes in the case of
Union
Government v Sykes
1913 AD 156
at 173
:
“
The important point is that less
evidence will suffice to establish a prima facie case where the
matter is peculiarly within the
knowledge of the opposite party than
would under other circumstances be required
…..”
The
concept of prima facie proof  is better understood by the
exposition given by Tindall J in
Goosen v Stevenson
1932 TPD 223
at 226
that:
“
if
the party, on whom lies the burden of proof, goes as far as he
reasonably can in producing evidence and that evidence ‘calls

for an answer’ then, in such circumstances, he has produced
prima facie proof, and, in the absence of an answer from the
other
side, it becomes conclusive proof  and he completely discharges
his onus of proof. ”
[48]
In applying this principle to the facts of
this matter, it is self evident that their property profile and
business ventures was
started and was built from his inherited
properties and with her sewing machines.  Both contributed work,
time and skill,
and A……. through his contacts acquired
contracts for the corporate clothing business.  The product of
their
work in the corporate clothing business appeared to be
reinvested in the business, and in addition thereto they began to
purchase
and sell property and to set up a multiplicity of corporate
entities and trusts, much of which was established to either own the

property or the relevant business.  But none of which had
anything to do with the reality of their business ventures.

Even after A……. was rehabilitated, they continued to
acquire and manage properties in much the same way.
[49]
On behalf of D………..,
no suggestion was made that she had brought any money into the
corporate clothing business,
apart from her contribution of the
sewing machines. Nor was any version suggested which indicated that
she had contributed monetarily
to the purchase of the immovable
property, other than part of the deposit in respect of the properties
in her name, and the payments
made by her during the period after the
court order, dated 28 June 2013, which specifically ordered her to
run the Parkmore Guesthouse
and to make the necessary payments in
relation to properties that were in her name or in the name of
entities in which she was
the controlling member or trustee.
Nor was A……’s evidence - that he had, amongst
other things: housed
the corporate clothing business in the
properties that he had inherited from his mother during the course of
its existence, rent
free; subsidised some of the expenses of the
corporate clothing business from Rosalina Properties CC; spent
substantial amounts
of time in assisting with the running of the
corporate clothing business and the guesthouses; undertaken major
renovations or refurbishments
in relation to the two guesthouses or
indeed in relation to the other properties that required fixing and
reparation; he had provided
the valuable furnishings in the Parkmore
Guesthouse which emanated almost exclusively from  his
inheritance;  transferred
the Lonehill property to the Cokaloka
Trust as collateral in order to raise sufficient funds for the
renovations at the Holt Street
Guesthouse; arranged for the
registration of a bond on the Lonehill Property for an amount of two
million rands for the purposes
of the Holt Street Guesthouse; found,
placed and managed tenants for the other immovable properties; dealt
with and was responsible
for all of the administrative work in
relation to their businesses and assets – seriously
challenged.
[50]
In
fact, much of the cross-examination of A…… was focussed
on the payments made by D……… in the
period
following the court order, and he was castigated for failing to
provide the ‘bank accounts’ for: Rosalina Properties
CC;
the Lonehill Property; the Kempton Park Property and the Holt Street
Guesthouse (‘
his
bank accounts
[16]
’),
all of which he had opened in or about September 2013, many months
after they had separated.  This approach in cross
examination
was misconceived and in any event irrelevant to a determination of
the issues that had been separated out.  That
is so because the
payments made by her were made in compliance with a court order, at a
time when it was common course that the
marriage had disintegrated
and they had separated, and consequently such payments cannot impact
upon a determination as to whether
or not there was a universal
partnership between them. The requirements for the determination of
such a partnership are far more
extensive, and more holistic than
that.   Secondly, and in relation to the criticism levelled
against him in relation
to his failure to provide or to discover
his
bank accounts
,
he testified that all of the documents pertaining to their businesses
and property portfolio were given to Mr Brits who worked
on the
documents from the Parkmore Guesthouse sometime in 2008 and 2009;
that he did not have financial statements in relation
to Rosalina
Properties CC and that in any event, D….. was the registered
owner or controlling member or trustee in relation
to all businesses
and properties and she was therefore the only person who could access
all the relevant bank accounts and statements.
[51]
The
fact that she did not do so, to disprove A……’s
testimony, particularly his version that their expenses and
bond
repayments were financed through the various close corporations, is a
glaring if not fundamental omission in the defence of
her case, and
her failure to testify compounded her difficulties
[17]
.
A proper assessment of the finances of the businesses under her
control, as well as the properties, was required to
counter Alan’s
evidence that their earnings prior to the separation came from the
corporate clothing business initially,
and thereafter from the
Parkmore Guesthouse, as well as rental income from the various
properties which they acquired whilst they
lived together, including
but not limited to the the Broadlands
[18]
and Bryanston properties.  In the circumstances, I find that the
essentials of a universal partnership has been established
from 1994
when they began the corporate clothing business until the date of
their separation.  Each party brought something
into the
partnership, the partnership was carried on for their joint benefit
and the object was to make a profit.
The
inherited properties
[52]
But that is not where the issues end.
A…… acquired two properties from his mother, the
Kempton Park Factory
and the Lonehill property, as well as valuable
furnishings (which are currently located at the Parkmore guesthouse),
prior to his
marriage to D…...  In light of the fact that
D…….. became the controlling member of Rosalina
Properties
CC (which owned the Kempton Park property) and the only
remaining trustee of Cokaloka Trust to whom the Lonehill Property was
transferred,
she sought a straightforward decree of divorce that
would, if granted, entitle her to: all of the properties whether
owned by her
personally or in her representative capacity as a member
or trustee, including Alan’s inherited properties, as well as
the
Parkmore Guesthouse and the Holt Street Guesthouse.  This
was, in my view, a magnanimous claim, one which is opposed by
A………...
[53]
It
was not contended on her behalf that she was entitled to the
inherited properties, or that it was brought into the partnership.

On the contrary, and on her behalf she denied any such partnership.
In fact, during A……’s cross-examination,
no
entitlement was claimed on her behalf in respect of the inherited
properties.   In addition, much of Alan’s
evidence in
chief established that D….. in fact had no interest in the
inherited properties.  In any event, and even
though the
inherited properties were used for the partnership business, there
was no evidence to suggest that the way that they
dealt with these
properties indicated an intention to be partnership assets.  In
the circumstances, the inherited properties
must be excluded from the
partnership assets.  But that does not conclude the matter.
As indicated earlier, A………
agreed to use the
Lonehill property as collateral to raise a bond of R2 million for the
purposes of renovating and furnishing the
Holt Street Guesthouse, and
for that purpose the property was nominally transferred to the the
Cokaloka Trust.  The Holt Street
Guesthouse benefitted from the
bond raised on the Lonehill property, and the outstanding bond on
that property must therefore be
factored into all the other
liabilities of the partnership
[19]
.
Properties
owned by the Cokaloka Trust
[54]
Before I proceed to determine the
third
issue
that has been separated out for
determination, it is necessary to determine whether or not, in the
circumstances of this case,
the assets owned by the Cokaloka Trust
can be regarded as assets of the partnership.
[55]
[A……’s] counterclaim to
the divorce action was premised on the contention that the assets of
the Cokaloka Trust
which was established in 2004 formed part of the
partnership.  In that regard the following averments were made
in the counterclaim:
’
25.4
The trust was established as an alter ego of the plaintiff in that
she had no intention of establishing
the trust as an entity separate
from her alternatively the universal partnership.
25.5
The trust was
de facto
controlled by the plaintiff having
regard to the terms of trust deed and the manner in which the affairs
of the trust were conducted.
25.6
The trust was a financial vehicle whereby the plaintiff’s
estate
alternatively
the
universal partnership could amass wealth and a financial advantage.’
[56]
Much of the evidence set out above can be
described succinctly in the following terms: in short the story
between D……
and A…… involved, a
sequestration, the movement of ownership of the inheritance from one
entity to another, the creation
of a range of close corporations and
trusts, the cross subsidisation of expenses both personal and
business, unexplained withdrawals
from business accounts, the
accumulation of immovable assets registered under different names,
and a complete disregard by D…..
of her obligations, as a
member or trustee of various trusts, including the Cokaloka Trust.
As indicated earlier in this
judgement, the Holt Street Guesthouse
and the Lonehill Property are registered in the name of the Cokaloka
Trust.  The bond
on the Holt Street property was, according to
Alan serviced by Rosalina Clothing CC, and the the improvements on
this property
were effected by obtaining a bond on the Lonehill
property which Alan inherited from his mum.  I have already
determined that
the inherited property does not form part of the
partnership assets, and the only remaining question is whether the
Holt Street
Guesthouse, despite its registered ownership by the
Cokaloka Trust, forms part of the partnership assets.
[57]
The Holt Street property was acquired in
2006, and Alan began renovations in respect of that property during
2008.  Neither
the transfer of the Lonehill Property from
Rosaline Properties CC to the Cokaloka Trust, nor the purchase and
registration of the
Holt Street Guesthouse was authorised by the
Trust, nor was it suggested on behalf of D……. that it
complied with
the requirements of the Cokaloka trust deed.
Fuhr, who assisted Danica and Alan to establish the Cokaloka Trust
Deed, testified
that they had agreed that Alan would only be a
beneficiary and not a trustee of the trust because of his insolvency,
and that it
was their intention to build up an estate together
inclusive of the Parkmore Guesthouse.  And although the Holt
Street Guesthouse
was acquired a few years after the establishment of
the trust, its registration in the name of that trust implicitly
suggests that
they had intended it to be part of their joint estate
and consequently a partnership asset.
[58]
Similar considerations apply in relation to
the Lonehill Property albeit that it does not form part of the
partnership assets.
The Lonehill Property was transferred to
the Cokaloka trust via a deed of transfer and a nominal value was
placed on the property
for the purposes of transfer duties, but the
trust did not pay the purchase price for the property.  Its
transfer was directly
relevant to raising capital for the renovations
in respect of the Holt Street Guesthouse, so that a loan could be
raised in the
name of the Trust.  Over and above these
considerations, it is clear from the factual scenario sketched above
that the parties
had established a plethora of corporate entities and
trusts to ring-fence the properties and businesses acquired by them,
much
of which did not accord with reality.  Their acquisitions
and business affairs were inextricably linked with their agenda to

establish a property profile and business that would form part of a
universal partnership.  They enabled the cross-subsidisation
of
costs across entities and for each other with no visible sign of any
formal compliance of the requirements of the trust deed
for such
dealings.
[59]
It
is trite that even though a trust is a not a legal person in the same
way as corporate entities,
section 1
of the Trust property Control
Act 57 of 1988 specifically contemplates the transfer of interest or
ownership in property by a trustee
or trustees in accordance with the
provisions of the governing trust deed.  And whilst section 12
of that Act provides that
trust property does not form part of the
personal property of a trustee, it is possible to look behind the
veneer of the trust
to determine who in fact owns trust property in
certain circumstances.  In
WT
and others v KT
[20]
,
the Supreme Court of Appeal held that:
As
regards averments pertaining to ‘looking behind’ the
veneer of the trust as the alter ego of WT, the legal principles
in
this respect have in essence been transplanted from the arena of
‘piercing the corporate veil’.  In the latter

context courts are empowered to disregard the legal fiction of
separate corporate personality in suitable of appropriate
circumstances.
Similarly, as Cameron JA noted in this court in
Land
and Agricultural Bank of South Africa v Parker and others
[21]
,
if
the trust form is ‘debased’ justice would dictate that
the veneer of the trust be pierced in the interests of creditors.

By analogous reasoning, unconscionable abuse of the trust form
through fraud, dishonesty or an improper purpose will justify looking

behind the trust form.
[60]
Against this background, and in the absence
of any evidence from D….., it was A….. who testified
that everything that
was done in relation to all of their proprietary
acquisitions was done in consequence of his sequestration, and
subjectively at
least, if not objectively, they intended to protect
their acquisitions from the claims of others.  That qualifies,
in my view,
as being an improper purpose which dictates that the
veneer of the Cokaloka Trust be pierced in the interest of both
parties.
The consequence thereof is that the Lonehill property
does not constitute a partnership asset but the Holt Street
Guesthouse does.
The
third issue
[61]
Having
found that a universal partnership existed between the parties, the
plaintiff alleges that any such partnership was ‘designed
to
mislead the Master and/or the trustee of his insolvent estate and/or
his creditors, and as such was immoral and against public
policy and
in contravention of the provisions of the
Insolvency Act&rsquo
;,
rendering the agreement illegal and
void
ab initio
and
consequently precluding Alan from recovering what he has transferred.
In this regard it is apparent that the jurisprudence

establishes that contracts and agreements, including an agreement to
establish a universal partnership, are voidable at the instance
of
the trustee
[22]
.  Even if
I am wrong in reaching this conclusion, it is clear from a synopsis
of the facts in this matter, that A….
and D…….
effectively succeeded in establishing a scheme or an arrangement
aimed at protecting the assets of their
partnership, and consequently
any acts in fraud of the law, were committed by both of them.
The facts and circumstances of
this matter accordingly warrant the
relaxation of the ‘par delictum rule’ in order to do
justice between A…..
and D…….
[23]
.
The result would therefore be the same.
Order
[62]
There is one last issue that requires a
brief mention before I determine the appropriate order in this
matter.  It is apparent
that the current relationship between
the parties is sadly acrimonious, and they have litigated to no end
in attempting to find
a resolution to this matter.  In the
context of this fact, and in light of the complex web of their
business affairs, a costs
order is in my view simply not
appropriate.  It is in the interests of both parties that they
should resolve the remainder
of their affairs as expeditiously as
possible.  Based on the aforegoing, the following order is made:
a)
It is declared that the Kempton Park
Property, the Lonehill Property and the furnishings inherited by A……
[Which have
been identified in annexure AA7 to the defendant’s
answering affidavit in the urgent application filed under case number
875/2013] do not form part of the universal partnership, and are the
exclusive property of A………;
b)
It is declared that the sewing machines
that were used for the purposes of conducting the corporate clothing
business do not form
part of the universal partnership, and are the
exclusive property of D……..;
c)
It is declared that a universal partnership
existed between the parties from 1994 until the date of their
separation in relation
to all entities, assets and businesses,
including all liabilities, acquired during this period, excluding the
assets listed in
paragraphs (a) and (b) above, whether they were
registered in Danica’s name, in the name of corporate entities
or trusts,
and that the partnership estate shall be divided equally
between them;
d)
The action in this matter is postponed sine
die to enable the parties to determine and to distribute the net
value of the partnership
estate.  For that purpose, the
following is ordered:
·
A…… and D…….
must within 14 days of this order agree in writing to appoint a
person, preferably a practising
chartered accountant, or failing such
agreement, such person to be nominated by the chairperson for the
time being of the South
African Institute of Chartered Accountants
(SAICA), to –
i.
determine the net value of all partnership
assets movable and immovable, taking into account the liabilities and
other relevant
costs (the ‘determination’);
ii.
in consultation with the parties, to engage
the services of any suitably qualified person or persons to assist
him or her in the
determination, and to pay such person the
reasonable fees charged in respect of such engagement;
iii.
call upon either party to produce any books
or documents which he or she may reasonably require for the
determination;
iv.
engage with the parties, in so far as this
is reasonably necessary, for the purposes of the determination;
v.
after consultation with the parties, to
sell and or re-distribute the assets of the partnership between the
parties in accordance
with their preferences in so far as this is
reasonably possible; or to pay either party such money equal in value
to his or her
share of the partnership estate, and for that purpose
to appoint an appropriate person to assist with the re-distribution
of the
partnership estate.
e)
There is no order as to costs.
SHAMIMA
GAIBIE
Acting
Judge of the High Court
Appearances:
For
the Plaintiff: DI Siena Attorneys
MMG
House
66
Park Lane
SANDTON
Tel:
(011) 218-8110
Fax:
086 210 0041
For
the Defendant: Dewey De Souza Attorneys
10
th
Floor, Office Towers
Sandton
City
Sandown
Tel:
(011) 883-4512
Fax:
(011) 883-8815
Ref:
A22986/Mr S Dewey/Mr J Botha
Date
of Hearing: 18 to 21 August 2015 and 21 September 2015
Date
of Judgment: 20 November 2015
[1]
For
convenience, I refer to the assets acquired by them during the
marriage as the ‘estate’.
[2]
Appropriately
summarised.
[3]
Where I refer to all three issues collectively, I refer to them as
‘
the
three issues
’
[4]
This
averment is expanded in paragraph 2.5 of the plea in which Alan
alleges that all property and assets, including his inheritance
were
transferred to either Danica or to the Cokaloka Trust of which she
is the controlling trustee
[5]
The
underlining of certain words in paras 2 and 3 of [A…….’s]
plea, are my emphasis aimed at focussing on
the gist of [A…..’s]
stated case.
[6]
Copies
of these applications formed part of the bundles that were before
me.
[7]
1945
WLD 226.
[8]
1984(3)
SA 102 (A).
[9]
1953(1)
SA 612 (O).
[10]
Muhlmann
fn 8 at pg 124
[11]
Ponelat v Schrepfer 2012(1) SA 206 at para [19].
[12]
This property is dealt with the next few paragraphs and looms large
in the overall factual context.
[13]
The
details of this trust are dealt with later in this judgment, suffice
to say for the moment that some of the immovable property
that was
acquired during the marriage was registered in the name of this
Trust.
[14]
Presumably
in terms of a joinder application.
[15]
Which I will deal with later in this judgment.
[16]
It
appears from the record, although it is not always apparent, that
the request for the ‘bank accounts’ is in fact
a request
for the financial statements in relation to Rosalina Properties CC,
and the bank statements for the Lonehill Property,
the Kempton Park
factory and the Holt Street Guesthouse in respect of which he
testified that he had one account.
[17]
Alan
was cross-examined at length about the contention in his plea and
counterclaim that he had paid 50% of the purchase price
of the
various properties, and although he suggested that the word purchase
price was in fact a reference to the deposit paid
on those
properties, that evidence must be seen in the context of his
unchallenged evidence that the bonded properties acquired
by them
during the partnership were serviced by the rentals in most cases,
and in other cases by Rosalina Clothing CC, sometimes
by Rosalina
Properties CC, and then by Moneyline 1398 CC.
[18]
The
only rental that Danica does not receive is in relation to the
Broadacres property because the rental is held in the trust
account
of Alan’s attorneys.
[19]
See a similar point which was discussed in
Fink
at
pg 243 to 245.
[20]
2015 (3) SA 574
(SCA) at para [31]
[21]
2005 (2) SA 77 (SCA)
[22]
See for instance: Ex parte Olivier
1948 (2) SA 545
©; W L
Carroll v Ray Hall Motors (Pty) Ltd
1972 (4) SA 728
(T); Priest v
Charles 1935 AD 147.
[23]
Afrisure
CC
v Watson NO & another
[2008] ZASCA 89
;
2009 (2) SA 127
(SCA) generally and at
paras [39] and [46].