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[2019] ZAGPJHC 322
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Le Roux v Jakovljevic (14/05429) [2019] ZAGPJHC 322 (5 September 2019)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 14/05429
In the matter between:
LE ROUX: JOHANNA
ELIZABETH
Plaintiff
and
JAKOVLJEVIC:
BRANMIR
Defendant
Judgment
INGRID OPPERMAN j
INTRODUCTION
[1]
The
Plaintiff seeks a declaratory order that a universal partnership
existed between the parties. The defendant denies the existence
of a
partnership, universal or otherwise.
COMMON CAUSE FACTS (OR FACTS WHICH
ARE UNDISPUTED)
[2]
The
defendant immigrated to South Africa from Serbia in 1975 at the age
of about 16. During approximately 1978, he started
a business,
which traded as Batos Radio and TV (‘
the
business’
).
[3]
The
parties met in 1984 when the plaintiff was 15 years of age and in
grade 10. The defendant is 11 years older than the plaintiff.
During
her matric year in 1986, she moved into the home of the defendant’s
parents. He was residing there with his parents
and sister, Svetlana
Jakoljevic (‘
Seko’
).
The plaintiff moved into the defendant’s bedroom where she
shared his bed from 1986 to 2013 ie for 27 years.
[4]
The
plaintiff was taught the Serbian language, culture, traditions and
was accepted into the Serbian Orthodox Church.
[5]
Two
children were born from this relationship, a daughter, born on 22
January 1989 (‘
the
daughter’
)
and a son born in 1995. The plaintiff fell pregnant again during 2007
but this pregnancy was terminated.
[6]
The
family was close knit. Grandparents and parents alike adored the
children. Seko, who has no children of her own, also took a
keen
interest in the children. All would attend concerts and prize
givings. The plaintiff however, was involved in the day-to-day
care
of the children ie taking and fetching to rehearsals and
co-curricular activities.
[7]
The
plaintiff left the defendant during 1991 for a period of
approximately 10 days.
[8]
During
1991 the parties started planning a wedding. On 17 November 1991, the
plaintiff and the daughter were christened. The wedding
ceremony was
planned for 24 November 1991 but it was postponed as it fell on the
plaintiff’s menstrual cycle. The parties
were ‘married’
[1]
according to Serbian custom on 1 December 1991.
[9]
The
plaintiff, Seko and defendant’s mother, started a beading
business, which involved making jewellery and selling it at
markets
over weekends. This they did from approximately 2000 to June 2013.
[10]
On 29
April 2002 the plaintiff signed her first employment contract with
the defendant. A dispute exists as to the reason for signing
it.
[11]
During
2003 the defendant’s lung collapsed and the plaintiff’s
involvement in the business intensified as she had to
step into the
breach. On 1 June 2003 the defendant procured medical aid cover which
reflected the plaintiff as ‘Mrs Jakovjlevic’.
[12]
On 5
December 2011, the plaintiff signed a second employment contract with
the defendant. A dispute exists as to the reason for
this.
[13]
On 18
August 2013 the parties separated.
[14]
There
are two properties relevant to this relationship:
14.1.
Erf
[…], Selcourt North – […] Road, Selcourt –
the property where the defendant lived with his parents
and where the
plaintiff moved to (‘
the
Selcourt property’
).
The defendant’s father transferred the Selcourt property to the
defendant, during 1991.
14.2.
Erf
[…], Springs. This is a property acquired by the defendant for
the business (‘
the
business premises’
)
during 1987, which property was transferred to Seko, on 24 July 2017.
[15]
The
money the plaintiff received from the beading business was ploughed
back into the house, used to buy things for the children
and personal
necessities.
LEGAL PRINCIPLES APPLICABLE
The Requirements for a Universal
Partnership
[16]
In
Paixao
v Road Accident Fund
[2]
Cachalia JA held that:
“
Proving
the existence of a life partnership entails more than showing that
the parties cohabited and jointly contributed to the
upkeep of the
common home. It entails, in my view, demonstrating that the
partnership was akin to and had similar characteristics
–
particularly a reciprocal duty of support - to a marriage.”
[17]
The
requirements for the existence of a universal partnership are
summarised in the matter of
Pezutto
v Dreyer and others
[3]
which was also confirmed in
Butters
v Mncora
[4]
at par 17:
“
Our
courts have accepted Pothier’s formulation of such essentiala
as a correct statement of the law. (Joubert v Tarry &
Co
1915 TPD
277
at 280 -1; Bester v Van Niekerk
1960 (2) SA 779
(A) at 783H –
784A; Purdon v Muller
1961 (2) SA 211
(A) at 218B – D). The
three essentials are (1) that each of the partners bring something
into the partnership whether it
be money, labour or skills; (2) that
the business should be carried on for the joint benefit of the
parties and (3) that the object
should be to make a profit. (Pothier:
A Treatise on the contract of Partnership (Tudor’s translation)
A fourth requirement
mentioned by Pothier is that the contract should
be a legitimate one.”
[18]
In
Butters
[5]
the
history of the different types of partnerships as well as their
applicability to cohabitants was discussed. It was held at par
[18]
that such partnerships can extend beyond commercial undertakings and
that:
‘
(a)
Universal partnerships of all property which extend beyond commercial
undertakings were part of Roman Dutch law and still form
part of our
law.
(b)
A universal partnership of all property does not require an express
agreement. Like any other contract it can also come into
existence by
tacit agreement, that is, by an agreement derived from the conduct of
the parties.
(c)
The requirements for a universal partnership of all property,
including universal partnerships between cohabitees, are the same
as
those formulated by Pothier for partnerships in general.
(d)
Where the conduct of the parties is capable of more than one
inference, the
test
for when a tacit universal partnership can be held to exist is
whether it is more probable than not that a tacit agreement
had been
reached
.
“
[6]
(emphasis provided)
[19]
In
the majority decision of
Butters,
it
was held at par [19] that:
“
Once
it is accepted that a partnership enterprise may extend beyond
commercial undertakings, logic dictates, in my view, that the
contribution of both parties need not be confined to a profit making
entity. ………….It can be accepted
that the
plaintiff’s contribution to the commercial undertaking
conducted by the defendant was insignificant. Yet she spent
all her
time, effort and energy in promoting the interests of both parties in
their communal enterprise by maintaining their common
home and
raising their children. On the premise that the partnership
enterprise between them could notionally include both the
commercial
undertaking and the non-profit making part of their family life, for
which the plaintiff took responsibility, her contribution
to that
notional partnership enterprise can hardly be denied.”
The Requirements for a tacit
agreement
[20]
In
the minority judgment in
Butters
,
penned by Heher JA with whom Cachalia JA concurred, he summarised the
approach to establishing whether a tacit agreement exists,
as
follows:
‘
[34]
This appeal is about an alleged tacit agreement. As in all such cases
the court searches the evidence for manifestations of
conduct by the
parties that are unequivocally consistent with consensus on the issue
that is the crux of the agreement and, per
contram, any indication
which cannot be reconciled with it. At the end of the exercise, if
the party placing reliance on such an
agreement is to succeed, the
court must be satisfied, on a conspectus of all the evidence, that it
is more probable than not that
the parties were in agreement, and
that a contract between them came into being in consequence of their
agreement. Despite the
different formulations of the onus that exist:
see the discussion in
Joel
Melamed and Hurwitz v Cleveland Estates (Pty) Ltd
1984
(3) SA 155
(A)
at 164G-165G;
Christie’s
The Law of Contract in South
Africa,
6ed 88-89, this is the essence of the matter.’
ANALYSIS OF THE EVIDENCE
[21]
This
Court is to approach the factual disputes which exist between the
evidence adduced on behalf of the Plaintiff
[7]
,
and the evidence presented on behalf of the Defendant
[8]
,
by applying the principles enunciated in the decision of
Stellenbosch
Farmers Winery Group Ltd and Another v Martell et Cie and Others
[9]
,
Nienaber JA held as follows:
"To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities. As to (a), the court's
finding on the credibility of a particular witness will
depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily
in order
of importance, such as (i) the witness' candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii)
internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established
fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular aspects of his version,
(vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events.
As to (b), a
witness' reliability will depend, apart from the factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the opportunities
he had to
experience or observe the event in question and (ii) the quality,
integrity and independence of his recall thereof. As
to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the
disputed issues.
In the light of its assessment of (a), (b) and (c) the court will
then, as a final step, determine whether the
party burdened with the
onus of proof has succeeded in discharging it. The hard case, which
will doubtless be the rare one, occurs
when a court's credibility
findings compel it in one direction and its evaluation of the general
probabilities in another. The
more convincing the former, the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail."
[22]
There
were some hotly contested topics, which have a bearing on the 3
requirements identified by Pothier, which make up a partnership.
Applying the principles applicable to the evaluation of evidence
quoted above, I intend dealing with them thematically and in no
order
of importance. In addition, the headings of the themes do not clearly
compartmentalise the different topics and are not intended
to. More
than one theme is addressed under each heading as it is not
practicable to isolate the facts under the chosen topics.
The Wedding and the nature of the
relationship
[23]
On 1
December 1991, the parties had a Serbian wedding ceremony in the
Serbian Orthodox church. The plaintiff testified that this
was a
ceremony designed to legalise their intimate relationship. The
defendant testified that it was a farce, intended to ensure
that the
daughter was not labelled a ‘copile’ or ‘bastard’
in the Serbian community and that she could
be christened to ensure
that if she died, she could go to heaven.
[24]
Towards
the end of 1991, a bishop in the Serbian church visited many towns in
South Africa including the town of Springs. It was
decided that this
visit would be an opportune moment to have the wedding ceremony. In
order to get married, the plaintiff had to
be baptized. The
plaintiff, together with the daughter, was baptized on 17 November
1991.
[25]
During
her evidence, the plaintiff made reference to some wedding
photographs, which were received as evidence. They depicted, amongst
other things, how a white cloth had bound their hands; they were
carrying large white candles and were wearing crowns. The plaintiff
explained that the crowns symbolized the glorification of the couple
and the institution of marriage, the candles symbolized their
future,
and how they would light their way and would keep them happy and
prosperous. The plaintiff testified that she believed
they would grow
old together and that they had unified their relationship before God.
[26]
On
questions by the court it became evident that the usual western
Christian customs were also followed during the ceremony, which
included a vow to God that they would be faithful to one another
until death.
[27]
In
analysing the defendant’s version as to the reason for the
wedding ceremony the following glaring contradiction is revealed:
He
said that the wedding ceremony was a pre-requisite for the baptism
yet the uncontradicted evidence of the plaintiff was that
the baptism
had occurred two weeks prior to the wedding. The defendant could not
place a date on the baptism and there is no reason
to question the
time frame of this event, as provided by the plaintiff. The
defendant’s version was further that the wedding
ceremony was a
ploy to deceive God into accepting that the daughter had been
legitimised by an authentic marriage in his church
when in truth, the
wedding was a farce to achieve two objectives one, to deceive God so
that the gates of heaven would be opened
to their daughter in the
event of her passing away and two, to deceive the Serbian community
so that their daughter will not be
labelled a ‘copele’.
[28]
The
defendant testified that he never intended to marry the plaintiff,
that he enjoyed sex with her but that she was not good enough
for
him. It is, in my view, most unlikely that the bishop would have been
in on this scam to deceive God. If the bishop were not
party to this
deception then the defendant’s version essentially boils down
to the following: The defendant deceived the
bishop, the plaintiff
and God. But God is all knowing and cannot be deceived. The object of
the entire scam would thus come apart
when the daughter arrived at
the gates of heaven as God would presumably say that entry were
precluded as passage was sought in
an improper manner.
[29]
I
have very little hesitation in concluding that on 1 December 1991 the
parties intended to be married in a conventional sense and,
in the
absence of agreement to the contrary, to share in their estates,
rather like a customary union,
[10]
as if they were married in community of property.
[30]
It
subsequently transpired that their marriage was not recognised
civilly. To this the defendant responded that they should get
married. The plaintiff’s response was that they are married in
the eyes of God. The defendant denies that he ever suggested
that
they should have a civil marriage as his version throughout was that
he never wanted to marry the plaintiff, that she was
more like a
servant in the home, serving his sexual needs and working as an
employee at his business.
[31]
The
defendant’s mother, in preparation for this trial, requested
confirmation from the Serbian church as to whether the wedding
had
been registered in Serbia. The court was referred to the very letter
recording this request. If it (the wedding) had been a
farce and
everyone (including the bishop) had been in on the deceit, why was it
necessary to make the enquiry, I ask.
[32]
I
have very little hesitation in accepting the plaintiff’s
version in relation to the wedding ceremony and the perceived
consequences at the time.
[33]
The
subsequent conduct of the parties support the conclusion I draw –
the defendant suggested that the plaintiff might have
had a
relationship/s with others and sought to paint her in a poor light by
virtue of this. If they were not married and she was
simply an
employee, what did it matter? It was because they considered
themselves partners in love and life, that the defendant
considered
him entitled to object to her ‘extra-marital’ affairs,
which she denied and no evidence was led to support
this suggestion.
[34]
In an
answering affidavit in a domestic violence dispute, the defendant
described their relationship as follows:
‘
5. My
family agreed that she could live with us and accepted her as my wife
and part of the family from that day onwards.
6. Although we were never
married in terms of the laws of the Republic of South Africa we had
been living together as husband and
wife from 1986 until during 2011
when the Applicant refused to share conjugal rights, despite her
continuing to sleep in our bed
and share our bedroom as if nothing
was amiss.’
[35]
During
the defendant’s evidence he denied that anyone ever referred to
the plaintiff as Mrs Jakovljevic in his presence. He
said that the
reference on his medical aid to the plaintiff as Mrs Jakovljevic was
a clerical error, correspondence to the parties
by the school as Mr
and Mrs Jakovljevic was a mistake, the reference by the defendant’s
bookkeeper to the plaintiff in the
accounting records as Mrs
Jakovljevic was a mystery and the reference in the defendant’s
financial statements to her as such,
which statements he signed, were
inexplicable. In my view, the defendant was neither a reliable nor a
credible witness. He was
argumentative and failed to answer questions
squarely. The aforegoing answers evidences a desperate attempt by him
to disassociate
himself from the plaintiff, this in the face of
statements made, under oath
[11]
,
to the contrary.
[36]
In my
view the probabilities are overwhelmingly in favour of a finding that
the parties lived together as husband and wife and represented
this
state of affairs to the world at large.
Batos Radio & TV – The
Business
[37]
When
the plaintiff met the defendant, he had an established electronic
shop which he conducted from rented premises in Springs.
It traded
under the name Batos Radio & TV
[12]
.
[38]
From
about this time, being 1986, the plaintiff worked at the business on
Fridays after school and Saturday mornings. During 1987
the plaintiff
started working at the business full time from 8h00 to 17h00. This is
disputed.
[39]
The
plaintiff contended that she had worked there as a co-partner. The
defendant testified that the plaintiff was no more than an
employee
and only started working there during 2002. In support hereof two
contracts of employment were presented.
[40]
The
plaintiff admitted having signed the contracts of employment but
explained that it was for tax purposes ie SARS were to understand
that she was an employee so that the defendant would receive the tax
benefit.
[41]
The
employment contract concluded on 29 April 2002 did not reflect a
salary and the employment contract concluded on 5 December
2011, reflected a weekly salary of R1 100. The plaintiff testified
that she never received a salary. She explained that the other
employees had been paid in cash but that she never received a salary.
What is clear from these agreements is that she worked at
the
business performing the following duties: ’
Cleaning
Sales, Stock Control, Answer Telephone, Helping on the Bench, Books,
Banking and Post’.
In
terms of these contracts she was required to work from 8 to 5 on
weekdays and 8 to 1 on Saturdays. It follows, if reliance can
be
placed on the correctness of the facts recorded in the contracts,
that from 2002 to December 2012, the plaintiff brought her
labour and
skills to the business. She however testified that as from 1986, she
used to work at the business on Fridays and Saturdays
and after
matric, from 1987 to 1988, she worked full day. Their daughter was
born on 22 January 1989 and for the first 40 days,
as is required by
Serbian custom, she was precluded from leaving the house. She
returned to work after 9 months. They were living
with the daughter’s
paternal grandparents so there were many caregivers around.
[42]
Seko
got married and left the Selcourt property but returned after having
been divorced. No evidence was lead as to the exact date
of her
departure or return.
[43]
Of
significance though is the fact that the grandparents and Seko ran
another business, separate from the business, which I shall
refer to
as ‘
the
factory’
.
[44]
Seko
and the plaintiff also started a beading business together with the
paternal grandmother (‘
the
beading business’
).
The most money ever received from this source was, according to the
plaintiff, between R5000 and R7000 in a given month. She
testified
that she ploughed this money back into the house, towards the
children or towards personal necessities. It is common
cause that the
plaintiff did not accumulate any assets during the subsistence of the
parties’ relationship.
[45]
Despite
the written employment contracts, it appears from the evidence of the
parties that the plaintiff would work at the shop
in the mornings and
fetch the children from school. She would take the children to their
respective co-curricular activities. It
is clear that the plaintiff
was a very involved parent, assisting at school with the tuck shop,
being on the matric dance committee
and helping the daughter further
her ballet aspirations. I find on the probabilities that the
plaintiff could not have been at
the business full time but that she
assisted there for significant periods of time but not as an
employee. The defendant’s
attempts at casting the plaintiff as
an employee in his business and an absent mother are not to be
reconciled with that which
he stated in the very same affidavit
referred to hereinbefore:
‘
8.3.3.4
The Applicant had been involved in the tuck shop at the children’s
schools, baking and selling and organising. This
started when our
daughter started school in about 1996, also moving to Springs Girls
High School when our daughter started high
school. This continued at
two schools simultaneously, until our daughter finished school. The
Applicant then continued with this
when our son went to Springs Boys
High School…….
8.3.3.5 The Applicant was put in
charge of the committee that prepared the matric farewell at our
son’s school and they had
a resounding success. She managed to
obtain sponsorships from Selcourt Spar, an insurance company,
individual shops and companies
for the invitations, the food, the
decoration, and all that went into the farewell.’
[46]
It
can be accepted that the plaintiff’s contribution to the
business of the defendant was less significant than that of the
defendant. I find though that the plaintiff spent all her time,
effort and energy in promoting the interests of both parties. The
plaintiff clearly took responsibility for their family life and
assisted in the business. There is no suggestion, on the
probabilities
of the evidence placed before this court, to the
contrary.
Loan and Sale of business to Seko
[47]
Both
the defendant and Seko testified that the defendant was indebted to
Seko in the amount of R1000 000 (‘
the
loan’
).
This indebtedness was recorded in a document dated 23 August 2012
(‘
the
23 August 2012 acknowledgment’
)
in which the business premises and the business were pledged to Seko
for repayment of the loan. It was recorded that the transfer
of the
business premises would take place as soon as funds were available
for such transfer, registration and attorneys fees. The
business
premises were transferred to Seko during May 2017.
[48]
The
existence of the underlying debt does not bear scrutiny and I find on
the probabilities, and on the credibility of both the
defendant and
Seko, that such debt did not exist and that the 23 August 2012
acknowledgment serves only to confirm that both the
defendant and
Seko were acutely aware of the fact that the plaintiff could lay
claim to the business and the business premises
and, to avoid this,
they ‘created’ a debt the effect of which would be, to
nullify the plaintiff’s claim to the
business and the business
premises.
[49]
Seko
testified that the R1000 000 was made up of moneys lent and advanced
to the defendant for the defendant’s and the plaintiff’s
daughter’s needs which funds were not gifted but constituted
loans to the defendant. I do not accept that the payments were
made
by Seko, nor do I accept that there was any agreement that these
monies would be repaid ie that they constituted a loan/s
to the
defendant, for the following reasons:
49.1.
Seko
testified that the loan was made up of expenses incurred in respect
of the daughter’s university expenses thus expenses
incurred
from about 2009 until date of the 23 August 2012 acknowledgment. The
defendant in contrast testified that the debt included
expenses
incurred in respect of the daughter from 2000 until 2012. This is a
material and fundamental contradiction. The one version
spans a
period of 3 years, the other 12 years.
49.2.
Seko
made much of the fact that she had paid for the daughter’s
medical expenses. The defendant had excluded all medical expenses
when he had listed the expenses, which were encompassed in the loan –
he had included fees for WITS, residence costs, books,
visit to Cape
Town to participate in a competition and clothing.
49.3.
Most
telling is Seko’s failure to have kept a record of these
expenses. If, as she testified, this were a loan, one would
have
expected some record keeping together with receipts to enable Seko to
do a reconciliation and justify the amount claimed.
Instead, this
court was presented with schedules listing the expenses and compiled
after the fact. None were in the name of Seko
but rather in the name
of a company called Commercium Trading (Pty) Ltd
(‘Commercium’
)
– the company run by the defendant’s parents and Seko.
Seko explained that the amounts listed in the schedules, although
paid by Commercium, were deducted from her salary. No evidence
supporting this was presented to this court. Presumably and probably,
because none exists.
49.4.
In
addition, the reconciliation does not add up to R 1000 000 but to
R297 273.20. When confronted with this during cross-examination,
Seko
explained that the cheques in respect of some amounts paid, could not
be located. Her attention was then drawn to 4 payments
on the
reconciliation which reflected ‘cash’ or ‘no copy’.
They were: R7000 allegedly paid on 4 August
2009, R2000 on 10
February 2012, R10 000 on 10 February 2013 and R15 000 on 22 January
2011. This document, the reconciliation,
on the face of it, sought to
be a comprehensive list of expenses paid by Commercium but the total
falls far short of R1 000 000
and the explanation for the shortfall
does not bear scrutiny.
49.5.
I
find it improbable that the grandparents would have paid for the
daughter’s university fees and disbursements but would
then
have recovered it from their own daughter, Seko by deducting the
monies from her salary. I find it far more probable that
the
grandparents wanted to assist their granddaughter and paid the
expenses directly as the cheques/payments suggest.
49.6.
On
the 5
th
of December 2013 in a supplementary affidavit in proceedings in the
Roodepoort magistrate’s court and in response to, amongst
other
things, a claim for a monthly contribution of R10 000, the defendant
stated: ‘
I
owe my sister over R400 000, such amount having been borrowed to pay
for our daughter’s studies’
.
When asked why, when he was armed with a document evidencing a loan
of R1 000 000 (the 23 August 2012 acknowledgment), he stated
under
oath that he only owed Seko R400 000, he could not answer. The
defendant initially attempted to lay the blame at the foot
of his
legal representatives but could not avoid the fundamental criticism
being that he had not drawn the 23 August 2012 acknowledgement
to the
attention of his legal representatives. The estate under discussion
is, relatively speaking, not large. The amount of the
loan comprises
almost 50% of the entire estate. It is thus not an insignificant
amount and not something the defendant could have
overlooked or
forgotten about. He was asked how many other people, in his life, he
owed R1 000 000. The response was none. That
being so, it is
incomprehensible that he could not have mentioned it in his affidavit
if, as he contends, the 23 August 2012 acknowledgment
existed at the
time of him deposing to the affidavit. The reason is plain – no
such debt as recorded in the 23 August 2012
acknowledgment, existed
at the time of deposing to the affidavit on 5 December 2013.
49.7.
An
acknowledgment of debt must always be grounded on a debt and, absent
a debt, the acknowledgement is without any legal force.
[13]
The facts do not support a finding of a debt underpinning the
acknowledgment of debt dated 22 August 2012 and I accordingly find
such acknowledgement without legal force.
EVALUATION
[50]
The
plaintiff’s case is that the parties had entered into a
partnership which encompassed both their family life and the
business.
[51]
The
plaintiff explained that just after matric, she asked whether she
could apply to be employed elsewhere but the defendant refused.
During 1991, she had applied and had secured employment, but the
defendant had again persuaded her not to take up the employment.
[52]
The
Plaintiff spent most of her time, effort and energy, promoting the
interests of both parties and their children. She worked
at the
business, maintained their common home and cared for the children.
She also
worked
at the factory when needed, made deliveries when needed, and attended
to the children in the afternoons after school.
[53]
The
parties resided together from 1986 until 2013 with the exception of
10 days during 1991. During this time, they raised two children.
They
represented themselves to the world as a couple.
The
plaintiff was referred to at school as Mrs. Jakovjlevic, she was
reflected as a dependent on the defendant’s medical aid
as Mrs
Jakovjlevic, as such by the doctor who admitted her to the Akeso
hospital, by the bookkeeper employed by the defendant and
on the
financial statements signed by the defendant.
[54]
I am
driven to conclude that the contribution by both parties, be it
financial or otherwise, was shared and consumed in the pursuit
of
their common enterprise. The bead money was ploughed back into the
house.
[55]
The
existence of the partnership was contested by the defendant on the
basis, amongst others, that the Serbian culture does not
permit of a
partnership described by and relied upon by the plaintiff. He
testified that a patriarchal system underpins the Serbian
culture.
All decisions in respect of the business and the running of the home
had to be approved by, and discussed with, his father.
The facts, as
presented by the defendant and if accepted, revealed that the
decision-making would have had to have been taken over
by Seko, who
is the oldest. In a patriarchal system however, the decision making
would have been taken over by himself and thereafter
by his son.
The defendant, when asked where the plaintiff fell into this
framework, responded that she did not fit in anywhere.
The facts
reveal that the plaintiff was an integral and reliable part of the
life they created together. I find that the cultural
confines within
which the parties found themselves held no bar to the existence of
the universal partnership. I find that the evidence
presented to the
contrary was a self-serving untruth. Although the defendant might
have consulted his father from time to time
as children do, his
father did not dictate the relationship between the plaintiff and the
defendant and how they ran the business.
Conclusion in respect of the
existence of a universal partnership
[56]
Having
regard to all the facts and circumstances of this case I conclude
that it is more probable than not that a tacit agreement
had been
reached. Their partnership enterprise included both the business and
their family life. The plaintiff’s impression
as to the core of
their relationship is borne out by the conduct of the parties. The
plaintiff testified that the income she earned
from the beading
business was ploughed back into the home, was spent on the children
and a fraction, about 10% thereof, spent on
personal necessary items.
The defendant said that he did not know what she had done with the
money so earned. That being so, it
must follow that he cannot dispute
what she contended she used it for. In
Butters
supra, it was argued which argument was accepted, that if both
parties had earned an income which they then shared, the plaintiff
would have gone a long way in meeting Pothier’s second
requirement. Here, the plaintiff’s beading business income was
shared. The income from the business was used for running the
business, the family home and general expenses. It can safely be
said
that this income was shared. In addition, on all the evidence it is
clear that the venture pursued by the parties, which included
both
their home life and the business, was aimed at a profit they tacitly
agreed to share. The defendant contended that the plaintiff
did not
have knowledge of the finances of either the Selcourt property or the
business. On the defendant’s own say so, this
cannot be
accepted. The defendant testified that the plaintiff had been the
business’s data capturer and that she prepared
the books for
the bookkeeper. It can hardly be contended under such circumstances
that she did not have at least a working knowledge
of the detail of
the finances in the business. It is, in any event, not necessary for
the second requirement that the intention
should be based on the
actual state of affairs. It is sufficient for there to be an
intention to make a profit, which there clearly
was.
DURATION OF THE PARTNERSHIP
[57]
I
find that the partnership commenced during 1986 and endured until 18
August 2013, which is the date that the parties parted company.
[58]
A
life partnership is terminated by the death of either or both
partners or by the separation of the parties. Whereas the
termination of a civil marriage or civil union, while both parties
are alive, involves state participation and must be done on
the basis
of the grounds of divorce prescribed in the
Divorce Act 70 of 1979
,
each life partner is free to terminate the life partnership any time
they wish to enter into a life partnership with someone else.
[14]
The physical act of termination does not involve the courts and
occurs extra judicially. However, the consequences of separation
may
be determined extra-judicially by agreement or if necessary, by means
of judicial determination.
[15]
The universal partnership was dissolved when the parties separated.
The date when the parties separated, a fact undisputed, is
the 18
August 2013.
ASSETS WHICH FORMED PART OF THE
UNIVERSAL PARTNERSHIP
[59]
On 1
February 1991, the Selcourt property was transferred into the name of
the defendant. It will be recalled that this was the
year the parties
got married according to Serbian custom. The Selcourt property was
transferred because, so the defendant and Seko
testified, the
defendant’s father’s business was in trouble and this
asset needed to be protected from the creditors.
Commercium was a
company so this scheme was not necessary and this explanation cannot
be accepted. Both the defendant’s parents
passed away during
the week of June 2019 of natural causes. Their last will and
testament was not placed before the court and one
therefore does not
know whether they considered the Selcourt property to form part of
their estate. Be that as it may, it would
in any event have been of
little assistance as we follow the abstract theory of property
transfer, in respect of both movable and
immovable property, which
does not require a valid underlying contract of sale for ownership to
pass.
[16]
The most plausible inference to draw from the available facts is that
the Selcourt property was gifted to the defendant during
1991 shortly
before the wedding.
[60]
Having
concluded that the partnership commenced during 1986, that it ended
18 August 2013 and that it was a partnership of all property,
I find
that the following assets formed part of this partnership:
60.1.
The
Selcourt property.
60.2.
The
business premises.
60.3.
The
business.
60.4.
A
Polo Vivo purchased in 2013.
PORTION
OF ESTATE TO WHICH PLAINTIFF IS ENTITLED
[61]
The
question however, is whether, as claimed, the plaintiff is entitled
to payment of 50% of the nett value of the defendant’s
estate
as at the date of their separation
viz
,
18 August 2013. It is not in dispute that the plaintiff played no
part, whatsoever, in the day to day running of the business,
from
1978 until 1986 or that the business premises was acquired during
1987 presumable from the fruits of the defendant’s
labour for
the preceding period. The continued success of the business (post
1986) cannot however, be attributed to him alone.
His capacity and
ability to operate optimally and to grow the business is to a large
measure also the product of a stable family
environment. The support
structure provided by the plaintiff permitted him the leeway to
devote his energy to the business. Family
matters became the sole
province of the plaintiff assisted by very willing grandparents and
sister-in-law. The success of the business,
contextually, is thus in
no small measure due to the role played by the plaintiff.
[62]
Notwithstanding
the aforegoing and the longevity of the couple’s cohabitation,
I do not think that it would be equitable to
order that half of the
defendant’s estate as at 18 August 2013 should devolve upon the
plaintiff. To attempt a formulaic
approach to determine a fair
apportionment is an impossibility and the only practical solution, to
my mind, is a rough and robust
approach.
[63]
I
n
Isaacs
[17]
,
Searl J found that the parties were entitled to an equal share of the
universal partnership, that finding was justified on the
facts
viz
,
the wife’s labour in the home coupled with her active
involvement in the business. In those circumstances Searle J, was
constrained to find it impossible to determine which of the parties
had contributed more than the other, in which event equity
dictated
an equal share. Similarly, in
Fink
v Fink and Another
[18]
Ramsbottom
J, found that on the facts the parties were entitled to share equally
in the division of the estate.
[64]
The
facts in
casu
are however, dissimilar to
Isaacs
and
Fink
.
That the plaintiff is entitled to a percentage of the partnership
assets as at 18 August 2013 is beyond question. The only remedy,
though arbitrary, is one with an equitable outcome. Such an approach
was adopted in the Botswana Court of Appeal in
Mogorosi
v Mogorosi
[19]
,
a matter involving parties who had cohabitated for approximately
fourteen years, and had children. The court of first instance
found
that the evidence established the existence of a tacit universal
partnership. On appeal, and after upholding the court below’s
finding that the parties’ conduct created a universal
partnership, Lord Coulsfield JA, (Zietsman JA, and McNally JA,
concurring),
after an analysis of the judgments in
Isaacs
,
Fink
and other cases, concluded by stating:-
“
It
may be questionable whether, on a strict application of the rule
governing the distribution of the assets of a universal partnership
that approach would be correct. If the universal partnership is
analogous to an ordinary commercial partnership, it would follow
that
the rights of the partners should be ascertained at the time of the
termination of the partnership. That would mean that the
value of the
respondent’s share would be determined as at, say 1981, and it
would then be necessary to compensate her for
the long period for
which she has been denied payment of her share, by an award of
interest or otherwise. However, the kind of
calculation which would
be required by a strict application of the rules would be totally
impracticable in the circumstances of
this case. The appellant and
the respondent have now been separated for a long period of years
during which they have neither lived
together not engaged jointly in
any kind of business. It may be possible to list the assets which
belonged to the universal partnership
in 1981, along the lines of the
respondent’s evidence before the customary court, but it would
be futile to try to ascertain
a money value of those assets as at
1981, and any calculations of shares or interests based on such an
approach would be speculative
in the extreme. In these circumstances,
if we are not to deny the respondent an effective remedy for her just
claims, we are driven
to take a broader and more equitable approach.
To do so, we have to find a way of fairly weighing and allowing for
contributions
of all the interested persons. In Isaacs v Isaacs
Searle J did that when he made a division between the parties, taking
into account
those contributions of the wife to which a financial
value could not be assigned as well as her contributions to the
businesses
of the parties. That is also essentially what the judge
did in this case in paragraphs 32 and 33 of his judgment. He took
account
of the respondent’s contribution to the growth of the
estate and the universal partnership, and also of her contribution to
the care of Florah’s children. He also gave full weight to the
fact that the appellant was already the owner of some property
before
1966. He does not expressly give a reason for ordering the division
of the existing estate, but I am prepared to assume
that he did so
because of the impracticability of any other calculation. The effect
of the judgment is to give the respondent 20%
of the appellant’s
estate and I do not think that has been shown to be an inequitable
outcome.”
[65]
Following
the approach adopted in
Mogorosi
it would, in my view, be equitable to award the plaintiff an amount
equal to 30% of the defendant’s net asset value as at
18 August
2013, this is so, amongst the reasons highlighted herein, because the
plaintiff had walked into an established business
during 1986 and the
Selcourt property had been transferred to the defendant during 1991
as a gift from his father. This is not
a case, such as
Isaacs
,
where the parties had commenced their ‘married’ life with
no assets.
THE DIVISION
OF THE UNIVERSAL PARTNERSHIP
[66]
Where
a court finds it impossible, impracticable or inequitable to
physically divide a particular asset between the parties or to
cause
it to be auctioned and to have the proceeds divided between them it
can place a valuation on that asset with due regard
to the
particular circumstances concerning its value at date of dissolution
of the partnership. The court may then award the assets
to a partner
and order him to pay the other her share.
[20]
[67]
In
this matter the plaintiff pleaded that if the parties cannot agree to
the division of the assets after a declaratory order was
granted that
a universal partnership came into existence, that a liquidator be
appointed. However, during argument this court was
urged to award the
assets to a party and order him/her to pay the other party his/her
share.
[68]
The
Selcourt property: On 9 April 2013, an objection was received by the
Ekurhuleni Metropolitan Municipality (‘
the
Municipality’
)
in respect of the valuation of the Selcourt property. On 13 December
2013 a response was received which reflected the market valuation
of
the Selcourt property at R 1 280 000 and the municipal valuation at R
980 000. Ms Engelbrecht representing the plaintiff argued
that the
court should accept the lower municipal valuation, rather than
appoint a liquidator to determine the value of the Selcourt
property
which would simply be time consuming and costly, something which the
parties in this litigation can ill afford. I agree.
I intend ordering
the defendant to pay the plaintiff 30% of R 980 000 within 6 months
of date of this judgment. Evidence of a bond
that was taken out over
the property during 2017 in the amount of R 150 000, I will
disregard, as this liability was incurred after
the dissolution of
the partnership.
[69]
Ms
Engelbrecht also urged the court to have regard to the valuations the
defendant and Seko placed on the business and the business
premises.
On 23 August 2012, the date of the acknowledgement of debt, the
defendant and Seko had agreed that the business and the
business
premises was worth R 1000 000. The addendum to the purchase agreement
dated 28 March 2018, reflects a purchase consideration
for the
business premises at R 560 000 and R 440 000 for the business. Ms
Engelbrecht argued that the business premises should
be considered to
be R 1 000 000 as this is what the parties agreed to on 23 May 2017
being the agreement underpinning the transfer
which occurred on 24
July 2017. If I am to take a robust and pragmatic approach as
suggested by Ms Engelbrecht I need to rely on
evidence reflecting the
value as at 18 August 2013. This can only be the value attributed by
the defendant and Seko in the 23 August
2012 acknowledgment read with
the 28 March 2018 addendum. The collective value of both the business
and the premises was R1 000
000 which value I consider correct and
intend ordering the defendant to pay 30% of R1 000 000 to the
plaintiff within 3 months
of this order. I have no evidence
relating to the value of the Polo Vivo and in her heads of argument,
Ms Engelbrecht did
not seek any order in relation to this vehicle.
COSTS
[70]
The
plaintiff sought a punitive costs order by virtue of the manner in
which the defendant conducted the litigation and by virtue
of the
quality of his evidence.
[71]
Reliance
was placed on the judgment of
B
v B
[21]
where the defendant had not provided
all necessary documents to calculate the accrual of his estate. The
following was stated at
paragraph [39]:
“
The
attitude of divorce parties, particularly in relation to money claims
where they control the money can be characterised as “catch
me
if you can”: These parties set themselves up as immovable
objects in the hopes that they will wear down the other party.
They
use every means to do so. They fail to discover properly, fail to
provide any particulars of assets within their peculiar
knowledge and
generally delay and obfuscate in the hope that they will not be
caught and have to disgorge what is in the law due
to the other
party.”
[72]
The plaintiff contended
that
the defendant ran this trial on a “
catch
me if you can
” basis,
conceding that this was not a divorce properly so.
[73]
Almost every topic the
defendant touched was tainted with lies, deception or disrespect: the
wedding ceremony, the loan to his sister,
the manner in which he
sought to paint the defendant as no more than a sex slave to him and
an employee to the business, whilst
this woman is the mother of his
two children. The embarrasment she had to endure during the hearing
coupled with the defendant’s
failure to provide credible
substantiating corroborative and primary evidence, all contribute
towards a finding that a punitive
costs order is justified.
ORDER
[74]
I
accordingly grant the following order:
74.1.
It is
declared that a universal partnership existed between the parties
during the period June 1986 and 18 August 2013 (‘
the
universal partnership’
).
74.2.
It is
declared that the following assets formed part of the universal
partnership:
74.2.1.
Erf
[…], Selcourt North – […] Road, Selcourt (‘
the
Selcourt property
’).
74.2.2.
Erf
[…], Springs (‘
the
business premises’
).
74.2.3.
Batos
Radio & TV (‘
the
business’
).
74.3.
It is
declared that the value of the assets, as at 18 August 2013, was:
74.3.1.
The
Selcourt property – R 980 000.
74.3.2.
The
business premises – R 560 000.
74.3.3.
The
business – R 440 000.
74.4.
The
defendant shall pay the plaintiff:
74.4.1.
the
amount of R 594 000, being 30% of R 1 980 000 (R 980 000 + R 560
000 + R 440 000), by no later than 28 February 2020.
74.4.2.
interest
on the amount of R 594 000 at 10,5% per annum from 28 February 2020
to date of final payment.
74.5.
Costs
of suit as between attorney and client.
__________________________
I OPPERMAN
Judge of the High
Court
Gauteng Local
Division, Johannesburg
Heard:
30 & 31 January 2019, 1 February 2019, 24 & 27 June
2019.
Judgment:
5 September 2019
Appearances:
For
Plaintiff: Adv T Engelbrecht
Instructed
by: Schalk Britz Inc
For
Defendant: Adv Van Veenendal
Instructed
by: Darrell Strydom Attorneys
[1]
The
legal consequences of this union will be analysed hereinafter.
[2]
2012
(6) SA 377
( SCA) para 29. See too
Booysen
v Stander
2018(6)
SA 528 (WCC) at para [44]
[3]
[1992] ZASCA 46
;
1992
(3) SA 379
(A) at 390
[4]
2012
(4) SA 1
(SCA) par [11] and [17]
[5]
Supra
at par [18]
[6]
Ally
v Dinath
1984 (2) SA 451
(T) at 453F – 455A;
Muhlmann
v Muhlmann
1981 (4) SA 632
(W) at 634A – B;
Muhlmann
v Muhlmann
1984 (3) SA 102
(A) at 109C – E;
Kritzinger
v Kritizinger
1989 (1) SA 67
(A) at 77A;
Ponelat
v Schrepfer
2012 (1) SA 206
( SCA) par [19] – [22].
[7]
Only
the plaintiff testified
[8]
The
defendant testified as well as Seko
[9]
2003
(1) SA 11
at 14I-15D
[10]
The
parties were in agreement that the
Recognition of Customary
Marriages Act, 120 of 1998
had no application and the case was not
couched nor argued on this basis.
[11]
Quoted
in para [34] hereof
[12]
Defined
previously as ‘
the
business’
[13]
Moving
Violations Systems Phumelelo (Pty) Ltd v The City of Johannesburg
Metropolitan Municipality
(A5028/2018)
[2019] ZAGPJHC 143 (16 April 2019) at para [31]
[14]
Volks
No v Robinson and others
[2005] ZACC 2
;
2005
(5) BCLR 446
(CC) at par
[55]
[15]
McDonald
v Young
2012
(3) SA 1 (SCA).
[16]
Legator
McKenna Inc v Shea
,
2010 (1) SA 35 (SCA) Brand JA at p 44
[17]
1949
(1) SA 952
(C)
[18]
1945
WLD 226
[19]
[2008]
BWSA 18 (30 January 2008)
[20]
LAWSA
paragraph 322 on Distribution;
Robson
v Theron
1978 (1) SA 841
(A) at 858.
[21]
(700/2013)
[2014] ZASCA 137
(25 September 2014)