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[2010] ZAGPJHC 17
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Schenk v Douglas (47536/2009) [2010] ZAGPJHC 17 (5 February 2010)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE SOUTH GAUTENG
HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
:
47536/2009
DATE
:
2010-02-05
In the matter between
FELICITY
DELPHINE SCHENK
APPLICANT
and
ROBERT
JAMES SHOLTO DOUGLAS
RESPONDENT
J U D G M E N T
VAN OOSTEN, J
:
In this application the applicant
seeks payment by the respondent of certain monies. The applicant and
the respondent were involved
in an intimate relationship since about
1972 from which a child was born in 1973. They, however, never
married but lived together
as a family until approximately 1994 when,
according to the applicant, the "relationship was clearly at an
end". It was
at this time, the applicant states, that "the
respondent and I verbally agreed that the respondent would pay me the
sum of
R1 000 000 in lieu of the obligations we believed he
owed me as his companion for approximately twenty years and as the
mother of our son”.
The applicant further states that “no
specific or express date” for payment of the amount was
discussed between them
but that it was her understanding that "the
date of payment of this amount would be when the respondent could
afford to pay
me” and that she always regarded this as “my
retirement package".
By way of background it is necessary
to refer to a further agreement alleged by the applicant in terms of
which the respondent would
pay for:
‘
16.1 my medical aid;
16.2 my car insurance;
16.3 an annual trip to the United
States of America to visit our son, together with $1000 for spending
money;
16.4 maintenance of R4 000 per
month. This amount was subsequently reduced by agreement to R3 500
per month after the
respondent paid me the sum of US$10 000,
which payment is referred to hereunder;
16.5 the levy contributions due to
the body corporate in respect of the respondent's flat in Benmore. …,
and
16.6 the electricity costs due in
respect of the Benmore flat.
17.1 It was also agreed that I
would have life long tenure in the respondent's flat situated at [
….. ] Benmore, Sandton,
Gauteng…where I currently
reside and have done so since 1987’.
It is common cause between the parties
that the respondent, during September 2008, paid the amount of US$10
000 to their son. The
applicant says and it seems to be common cause
that this amount should be deducted from the R1million which the
respondent still
owes her. No further payments, she further states,
were made and she therefore, in prayer 1 of the notice of motion,
claims payment
by the respondent of the sum of R917 400.00 being
“being an amount of R1m…less US$10 000… the
exchange rate
of which, as at September 2008, was R8.26…(the
capital sum)”.
In prayer 2 of the notice of
motion the applicant claims payment by the respondent of the sum of
R3 500 per month from
December 2008 to date of payment of
the capital sum. The notice of motion contains three further claims
(prayers 3, 4
and 5, relating to the expenses referred to in
para 16.1, 16.2 and 16.6 quoted above), but those were not pursued in
argument before
me. I am accordingly required to determine only the
applicant's claim for payment of the capital sum of R917 400 and
the sum
of R3 500 per month from December 2008 to date of
payment of the capital amount. The date December 2008 has this
significance: that is when the parties according to the applicant
were involved in a heated argument which resulted in the respondent
from then onwards not making any further payments.
At first blush one cannot escape a
certain feeling of uneasiness when regard is had to the terse
information and details given by
the applicant as to the conclusion
of the agreement she relies upon. Counsel for the respondent went
further and expressed her
misgivings in a point
in limine
to
the effect that the applicant has failed to show a cause of action
for want of any particulars as to the exact date upon which
as well
as the place where the agreement was concluded and moreover what the
precise terms thereof were. Read in context and viewed
against the
background facts of this matter, however, there is no merit in
counsel's contention. Odd as it may seem, as it will
become apparent,
the applicant's version as to the conclusion of the agreement gains
considerable momentum and in fact is corroborated
by the version of
the respondent. The point
in limine
, therefore, is dismissed.
The starting point is the applicant’s
instruction to her present attorneys of record to pursue her claims
against the respondent
and the respondent’s response thereto.
Mr van Niekerk, of the applicant's attorneys, discussed the
applicant’s
claims with the respondent in an attempt to come to
an amicable settlement. In an email to Van Niekerk dated
29 April 2009
the respondent expressed himself as follows:
‘
The position is briefly as
follows. Over 15 years ago (any relationship we might have had, had
ended long before this & we were
to all intents and purposes
leading separate lives, although staying in the same flat). I offered
& agreed a settlement with
Felicity (
ie
the applicant) totalling a million
rand. Nothing more, nothing less. It was agreed that I would cover
certain expenses from an ‘assumed’
income from it &
the balance would be paid as a cash allowance. In any event, I never
had, nor do I now have a million rand
cash or near cash available.
This arrangement was not discussed with anyone else nor was it
reduced to writing, the basis being
trust’.
The content of the “agreed
settlement” alleged by the respondent in this email is squarely
on all fours with the applicant's
version. The "assumed income”
he referred to was obviously and quite clearly the income the
applicant would have received
by way of interest had the amount been
paid to her then. Further of importance is the reference to the
"balance", which
he stated would be paid as a "cash
allowance" to cover the applicant’s monthly expenses. In a
follow-up email to
Van Niekerk, dated 17 May 2009, the
respondent again referred to the agreement, this time expressing
himself as
follows:
‘
The crux of the matter is the
private settlement that Felicity & I made of 1million rand. This
was or there was. Nothing more,
nothing less. The monthly ‘expenses’
of about R10 000 was based on an assumed income from this sum.
So I
have not ‘reduced’ her expense allowance at all. In
fact, I believe an assumption of 12% after tax should be regarded
as
fairly generous? It’s just that the expenses have increased
beyond the R10 000 pm figure. (now R9 500pm). If
I were to
pay her R1mill, then she would need to vacate the flat, the
‘allowance’ would fall away, she would need to
refund the
usd10 000 (or deduct it) & she would need to take over
certain expenses I have paid directly, including car
insurance,
medical aid etc. all included in the ‘expenses’’.
Against this I turn to the version of
the respondent as set out in his answering affidavit in this
application. Significantly, except
for a general denial, he fails to
deal directly with the applicant's allegations concerning the
conclusion of the oral agreement
relating to the payment of
R1 000 000. The only direct reference thereto comes much
later in the answering affidavit
where he stated as follows:
‘
38. When this dispute arose I
went to see her attorney at Eversheds, Mr Peter van Niekerk
to explain the situation
and try to resolve the matter amicably. I
tried to explain to him that our agreement had been for a notional
payment of R1 000 000
to the applicant in the form of
benefits and cash to a maximum of R10 000 per month. This was
further to be reduced by my
payment of $10 000 to her, via our
son, resulting in an overall monthly exposure by me of R9 500.
He has misinterpreted
this, and insists that the R9 500 per
month is due in cash over and above the other benefits. This is
manifestly not so. But
I was not legally represented at that meeting,
and my emails to him appear to be badly worded’.
The version the respondent now
proffers clearly contradicts the contents of the earlier emails to
Van Niekerk I have referred
to. It is only now that the notion
of a "notional payment of R1 000 000" in the form
of benefits and “cash
to the maximum of R10 000 per month”
has been introduced. But this version in itself leaves a number of
questions unanswered,
such as when the obligation was to commence,
when it would end and why it was assumed. These questions are all
raised by the applicant
in her replying affidavit. The respondent has
moreover failed to set out the amount he has thus far paid in alleged
reduction of
the capital and what the amount of the overpayment is
(as was alleged in a letter by his attorney dated 4 July 2009), nor
was there
any reference at any stage prior to him consulting with his
attorney and the correspondence that ensued, to the obligation in
these
terms.
Considered against the background
facts of this matter, in particular the relationship that had existed
between the parties prior
to the breakdown thereof, the accumulation
of assets during the time they lived together as husband and wife
and, finally, that
the agreement was concluded much by way of what
otherwise would have been a “divorce” settlement, the
probabilities,
in my view, quite clearly tip the scale in favour of
the applicant's version. It follows that she is entitled to the
relief sought
in prayers 1, 2 and 7 of the notice of motion.
In the result grant an order in terms
of prayers 1 as amended, 2 (as amended by me) and 7 of the
notice of motion. The order
accordingly now reads as follows.
ORDER
The respondent is ordered to make
payment to the applicant of an amount of R917 400 within 90 days
of the date of this judgment.
The respondent is ordered to make
payment to the applicant of a sum of R3 500 per month from
December 2008 until the date
of payment of the capital sum in 1
above.
The respondent is ordered to pay the
costs of this application.
Leave is granted to the respondent to
approach this Court on the same papers to obtain an amendment, if
required, of the 90 days
period referred to in paragraph 1 above
within five days of the date of this order.
Counsel
for the applicant
Adv
SA Nathan SC
Counsel
for the respondent
Adv
A Willcock
1902136