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[2017] ZAGPJHC 50
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T v T (33933/2015) [2017] ZAGPJHC 50 (3 March 2017)
SAFLII
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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.: 33933/2015
In
the matter between
T
G (NEE
M)
PLAINTIFF
And
T
V
DEFENDANT
JUDGMENT
VAN
DER WESTHUIZEN, A J
[1]
The plaintiff instituted action proceedings against the defendant in
terms whereof plaintiff sought a decree of divorce and
a declaration
of the existence of a universal partnership wherein the parties each
hold 50% and ancillary relief.
[2]
The defendant opposed the action. The defendant filed a plea
and refrained from filing a counterclaim. In taking
the
aforesaid steps, the defendant was remiss and did not keep to the
prescribed time periods. A notice of bar was served
upon the
defendant for filing his plea to the plaintiff’s particulars of
claim after which the plea was served and filed.
[3]
Pleadings having closed, the parties exchanged the required notices
relating to discovery. On 25 May 2016, the plaintiff
launched
an application against the defendant to compel further and better
discovery. An order compelling the defendant to
file further
and better discovery was granted on 4 November 2016. The
defendant did not comply with the order of 4 November
2016 despite
being requested to do so by the plaintiff’s attorneys. No
response to that request was forthcoming.
[4]
On 2 December 2016 the plaintiff launched an application to strike
out the defendant’s defence. That application
was served
upon the defendant’s attorneys on 5 December 2016. The
said application was heard on 21 December 2016 and
an order striking
out the defendant’s defence was granted on that day.
[5]
The defendant applied for a rescission of the order striking out his
defence. The plaintiff was compelled to launch an
application
in terms of Rule 30 in respect of the defendant’s rescission
application, the latter being defective. The plaintiff’s
Rule
30 application was heard on 22 February 2017 and granted on 23
February 2017.
[6]
On 12 February 2016 the plaintiff applied for a trial date of the
action and a trial date was set for 22 February 2017.
At the
trial roll call the aforementioned Rule 30 was argued.
[7]
The matter was allocated to me on 23 February 2017. Due to the
fact that the defendant’s defence was struck out
and the Rule
30 application granted, the defendant has no right to participate
further in these proceedings. After hearing
evidence, counsel
appearing on behalf of the plaintiff requested leave to file written
heads of argument in particular on the issue
of the existence of a
universal partnership between the parties. I granted that
request and consequently reserved judgment.
[8]
The parties were married according to customary rights in August
2004. Thereafter, during December 2004, the parties entered
into a civil marriage, out of community of property with the
exclusion of the accrual. One minor child was born of the
relationship
between the parties. At the time that the parties
entered into the customary union and the civil marriage, both had
minor
children from previous relationships with other partners.
[9]
The parties separated and the plaintiff left the common home on 1 May
2014. The plaintiff testified in respect of the
irretrievable
breakdown of the marriage. I do not intend dealing with that
evidence and I am satisfied that the marriage
relationship between
the parties has irretrievably broken down. The plaintiff is
entitled to a decree of divorce.
[10]
The only issue that remains is that relating to the question whether
a universal partnership existed between the parties.
The issues
pertaining to the minor child born of the marriage is not in dispute
as the parties have come to an agreement in that
regard. That
agreement is contained in the order I intend granting.
[11]
In respect of the question of the existence of a universal
partnership, the plaintiff testified as follows:
(a)
It was understood by the parties that they
would run their affairs as one and as a joint estate. The
purpose of the marriage
out of community and exclusion of the accrual
system was purely to protect their respective business interests;
(b)
The plaintiff paid substantial amounts of
money into the joint estate, these include:
(i)
The proceeds of the sale of her own
property that she held in her name and acquired prior to the parties
meeting;
(ii)
The school fees of the children from other
relationships and that of their own;
(iii)
Purchasing furniture for the communal home;
(iv)
Maintenance and repair of the communal
home;
(v)
Holidays for the family and the like;
(vi)
The plaintiff paid for all the expenses of
the communal home, but for the monthly bond repayments, although the
proceeds of the
plaintiff’s own property was deposited into the
bond account as recorded above.
(c)
The plaintiff also provided furniture to
the communal home that she acquired prior the meeting of the
parties. Some of that
furniture was provided to the homestead
on a farm that the defendant acquired subsequent to the marriage.
(d)
The communal home was acquired jointly. By
agreement, the parties would sell their respective immovable property
and jointly
purchase a communal home. Although it was
registered in the defendant’s name only, the intention was to
have it registered
in both of the parties’ names. The
plaintiff’s property took longer to be disposed of and affected
her obtaining
a bond in her name. The proceeds of the sale of
the plaintiff’s property were eventually deposited into the
bond over
the communal property.
(e)
The parties never discussed the issue of
reimbursement of monies paid by either on behalf of the other.
It was accepted by
the parties that they would pool their resources.
(f)
Joint decisions were taken whenever the
plaintiff or the defendant considered undertaking ventures.
This included the purchasing
of motor vehicles when the need arose.
(g)
The defendant holds interest in 31
entities, and wherein he is a director and shareholder and the sole
member of 4.
(h)
The plaintiff referred to various e-mails
from the defendant to plaintiff that indicate that the defendant
himself considered their
relationship as a universal partnership with
a 50/50 shareholding.
[12]
From the foregoing, the plaintiff claims that a universal
partnership, and more specifically a
universorum
bonorum,
was entered into tacitly.
[1]
[13]
Counsel for plaintiff submitted that the evidence of the plaintiff
and the documentation relied upon, confirm that throughout
the
parties’ intentions were to obtain/purchase/acquire property
and as a joint estate. The contrary was not shown,
nor could it
be inferred.
[2]
[14]
It is trite that the
essentialia
of a partnership requires:
[3]
(a)
A contribution by both parties to a joint
venture either by skill, labour or money;
(b)
The business should be carried out for the
joint benefit of the parties;
(c)
The object of the joint venture should be
to make a profit;
(d)
The contract should be a legitimate one.
The
foregoing
essentialia
equally apply to a universal partnership.
[4]
[15]
In my view, the plaintiff has proven compliance with the required
essentialia
for the existence of a universal partnership, and
in particular a
universorum bonorum
. That partnership
ended when the parties separated and the plaintiff left the common
home on 1 May 2014.
[16]
In the absence of evidence to the contrary, the plaintiff has proven
that each of the parties hold a 50% share in the partnership.
[17]
There remains the issue of costs. The plaintiff seeks a
punitive cost order against the defendant. The punitive
cost
order is premised upon the defendant’s actions during the
period since issuing of the action for divorce and until the
trial
was finally heard and further pertaining to the various
interlocutories that were brought. I am of the view that in
each of those applications the appropriate cost order was granted and
a punitive cost order at this stage would result in unfairness
towards the defendant. The defendant’s adverse actions
have already been dealt with in respect of appropriate cost
orders.
[18]
It follows that the plaintiff is entitled to an order declaring that
a universal partnership existed between the parties and
that each
holds a 50% share therein.
I
grant the following order:
(a)
A decree of divorce;
(b)
It is declared that a universal partnership
exists between the parties and that the parties each hold a 50% share
in such partnership;
(c)
The partnership is dissolved with effect
from 1 May 2014;
(d)
Failing an agreement between the parties
within a period of 2 (two) months (or such longer period as the
parties may in writing
agree to) the nett benefit accruing to the
plaintiff from the universal partnership and the manner and the date
of delivery and
payment of such benefit to the plaintiff: -
(i)
that a liquidator be appointed to liquidate
the partnership;
(ii) unless the
parties agree in writing on the appointment of a liquidator, the
liquidator shall be appointed at the request of
either of the parties
by the Chairperson of the Johannesburg Bar;
(iii) the parties
shall within 1 (one) month of the appointment of the liquidator
deliver to the liquidator and to each other a
statement of his or her
assets and liabilities as at 1 May 2014 duly supported by such
available documentation and records as are
necessary to establish the
extent of such assets and liabilities;
(iv) the liquidator
may call on either party
mero motu
or at the request of one of
them to deliver further documents or records to the liquidator and to
the other party;
(v) the liquidator
shall determine a date for the debatement of the statements referred
to in para. (iii) above and shall preside
over such debatement;
(vi) the liquidator
shall within 1 (one) month of the conclusion of the debatement make
an award in writing determining the assets
and the liabilities of the
universal partnership and dividing the nett assets by awarding 50% to
the plaintiff and 50% to the defendant;
(vii)
the parties shall give effect to any award
made by the liquidator within such period as the liquidator may
direct in writing;
(viii)
the costs of the liquidator shall be borne
by the parties equally;
(e)
It would be in the best interest of the
minor child born of the marriage relationship between the parties
that the plaintiff shall
have sole parental responsibilities and
rights with regard to the care as well as guardianship of the said
minor child as envisaged
by the provisions of s 18 of the Children’s
Act, Act 38 of 2005, (the Act) and that all the defendant’s
parental responsibilities
and rights in respect of the said minor
child as envisaged by the provisions of s 18 and s 20 of the Act be
terminated in terms
of s 28 of the Act and that the plaintiff
therefore be awarded the right to provide the primary care and the
primary place of residence
for the said minor child;
(f)
That specific parental responsibilities and
rights as set out in s 18(2)(b) and s 18(2)(d) of the Act, and in
particular the right
to maintain contact with the said minor child
and the right to contribute to the maintenance of the said minor
child be awarded
to the defendant;
(g)
That the defendant contributes to the
maintenance of the said minor child as set out hereunder;
(i) The defendant
is ordered to pay maintenance for the said minor child in the amount
of R6 000.00 (six thousand rand) per month
until such time as the
said minor child becomes self-supporting and independent, to increase
at the rate of 10% (ten percent) per
annum on the anniversary of the
divorce order being granted;
(ii) The defendant
is ordered in addition to the foregoing, to retain the said minor
child on his present medical aid scheme or
any other medical aid
scheme with similar benefits and the defendant shall be liable for
the monthly instalments in respect of
same. In addition to the
aforesaid, the defendant is ordered to pay for any reasonable and
necessary medical expenses, hospital,
dental, surgical, optometric,
ophthalmic, pharmaceutical, nursing, orthodontic and therapeutic
costs in respect of the said minor
child not covered by such medical
aid scheme;
(iii) The defendant
is ordered to pay the school fees, school uniforms, books and
stationery and other related schooling costs in
respect of the said
minor child, including tertiary education subject to the said minor
child showing an aptitude in terms of the
proposed tertiary
education;
(iv) The defendant,
in addition to the foregoing, is ordered to pay all the other school
expenditure and extra mural activities
including equipment required
and other related schooling costs of the said minor child not listed
above.
(h)
The defendant is ordered to pay the costs
of suit.
________________________________
C J VAN DER WESTHUIZEN
ACTING JUDGE OF THE HIGH COURT
On behalf of Plaintiff:
Ms A E Willcock
Instructed
by:
Jurgens Bekker Attorneys
Date
of hearing: 23 February 2017
Date of judgment: 03 March 2017
[1]
See
Ally
v Dinath
1984(2) SA 451 (T); see also
Butters
v Mncora
2012(4) SA 1 (SCA)
[2]
Festus
v Worcester Municipality
1945
CPD 186
; see also
Butters
v Mncora, supra
[3]
Purdon
v Muller
1961(2)
SA 211 (A);
Pezzuto
v Dreyer
1992(3) SA 379 (A)
[4]
See
Mulhmann v Mulhmann 1981(4) SA 632 (W); see also Kritzinger v
Kritizinger
1989(1)
SA 67 (A)