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[2010] ZAWCHC 193
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Schrepfer v Ponelat (17318/2009) [2010] ZAWCHC 193 (26 August 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CIRCUIT LOCAL DIVISION)
REPORTABLE
CASE
No: 17318/2009
In
the matter between:
ERICA
SCHREPFER
…......................................................................
Plaintiff
and
HEINZ
GUNTHER PONELAT
….........................................................
Defendant
JUDGMENT
DELIVERED : 26 AUGUST 2010
MOOSA,
J:
Introduction:
[1]
In this matter the Plaintiff instituted action against the Defendant
in terms of which she sought relief in respect of two claims.
The
first claim is for a declaration that a universal partnership existed
between the Plaintiff and the Defendant, confirming the
dissolution
of such partnership and claiming certain consequential relief. In the
alternative to the first claim, she claimed from
the Defendant
maintenance at the rate of R12 000 per month until her death,
remarriage or permanent co-habitation with a partner.
The first claim
is premised on an oral agreement, alternatively on an implied and/or
tacit agreement based on their conduct. The
second claim is for
damages in the sum of R100 000 for breach of promise to marry and for
certain ancillary relief. The Defendant
opposed the action and, in
his plea, denied that a universal partnership existed between him and
the Plaintiff and denied that
he had promised to marry the
Plaintiff.
The
Issues:
[2]
In terms of the pleadings, the issues the court is called upon to
determine in respect of the first claim are whether a universal
partnership existed between the parties and if it is found that a
universal partner existed, the court must make a pronouncement
on the
consequential relief sought by the Plaintiff. However, should the
court find that a universal partnership did not exist,
then the court
must adjudicate the alternative claim of whether the Plaintiff is
entitled to the payment of maintenance from the
Defendant and if so,
what is an appropriate amount. The issues the court has to determine
in respect of the second claim are whether
the Defendant promised to
marry the Plaintiff and if so, whether there was a breach, and if
there was a breach whether the breach
was wrongful. If it is found
that there was no promise to marry, or there was no breach or the
breach was not wrongful, the Plaintiff
cannot succeed. If on the
other hand all those elements are established, before the court can
award damages, the Plaintiff must
establish the impairment of the
dignitas.
The
Law:
[3]
The essentials of a special contract of partnership were confirmed in
the case of
Pezzuto
v Dreyer
[1992] ZASCA 46
;
1992
(3) SA 379
(A) at 390, as follows:
"Our
courts have accepted
Pothier
s
formulation of such essentials 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 skill; (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) 1.3.8).
A fourth requirement mentioned by
Pothier
is
that the contract should be a legitimate one."
[4]
The
essentiala
of
the partnership set out above applies equally to a universal
partnership. In this regard see
Muhlmann
v Muhlman
1981
(4) SA 632
(W) ;
V(aka)L
v De Wet N O
1953
(1) SA 612
(O) at 615;
Isaacs
v Isaacs
1949
(1) SA 952
(C) at 956 and
Schaeffer:
Butterworths
Family Law: Cohabitation at page 3). The contract of partnership may
not necessarily be expressed. It could be tacit
or implied from the
facts, provided they admit of no other conclusion than that the
parties intended to create a partnership
(Festus
v Worcester Municipality
1945
CPD 186
(C). Our courts have recognised that a universal partnership,
also known as domestic partnership, can come into existence between
spouses and co-habitees where they agree to pool their resources
(Muhlmann
v Muhlmann
1984
(3) 102 (A);
Kritzinger
v Kritzinger
1989
(1) SA 67
(A);
Ally
v Dinath
1984
(2) SA 451
(T) and
V(aka)
L v De Wet
(supra)).
The
Universal Partnership:
[5]
Our common law recognises two types of universal partnerships. The
one is commonly known as the
universorum
quae ex quaestu veniunt
which
Pothier,
according
to
Tudor
's
translation at page 32, describes as follows:
"The
parties thereby contract a partnership of all that they may acquire
during its continuance, from every kind of commerce.
They are
considered to enter into this kind of partnership when they declare
that they contract together a partnership without
any further
explanation."
The
other is commonly known as
universorum
bonorum
which
Pothier,
according
to
Tudor
's
translation
at page 24, describes as follows:
"The
partnership universorum bonorum is that by which the contracting
parties agree to put in common all their property, both
present and
future."
(See
Isaacs
v Isaacs
1949
(1) SA 952
(C).)
[6]
The present claim falls under the
universorum
bonorum.
There
has been some uncertainty firstly, whether the
universorum
bonorum
has
fallen into disuse
(De
Wet & Yeats:
Kontraktereg
at
page 381) and secondly, whether it has to be entered into expressly
(Annabhay
v Ramlall and Others
1960
(3) SA 802
(D)).
Ellof
J
(as
he then was), in
Ally
v Dinath
1984
(2) SA 451
(T) considered an exception taken to the claim for a
universal partnership based on
universorum
bonorum
on
the ground that there was no allegation that the agreement of
universal partnership was concluded expressly.
Ellof
J,
accepted
that our common law, in line with the decision of
Searle
J,
in
Isaacs
v Isaacs
(supra),
recognised
two types of universal partnerships, namely
universorum
bonorum
and
universorum
quae ex quaesty veniunt.
After
analysing the various Roman-Dutch law authorities, he concluded that
there is no merit in the contention that the universal
partnership of
the type known as
universorum
bonorum
should
be expressly entered into by the parties. These decisions have been
followed in a very recent case by
Davis
J,
in
Sepheri
v Scanlan
2008
(1) SA 322
©. I have no reason to differ from them and
accordingly conclude firstly, that the
universorum
bonorum
has
not fallen in disuse and secondly that the
universorum
bonorum
does
not necessarily have to be entered into expressly. It can come into
existence tacitly or by the conduct of the parties.
[7]
A universal or domestic partnership is akin to a marriage in
community of property.
H
R Hahlo:
"The
South African Law of Husband and Wife"
5
th
edition,
at pages 157-158, describes marriage in community of property as
follows:
"Community
of property is a universal economic partnership of the spouses. All
their assets and liabilities are merged in a
joint estate, in which
both spouses, irrespective of the value of their financial
contributions, hold equal shares."
And
on the reciprocal duty of support in a marriage, he goes on to say at
page 354 as follows:
"Divorce
puts an end to the reciprocal duty of support that existed between
the spouses during marriage. An existing court
order for the
maintenance of the wife comes to an end. So does a clause in a
separation agreement providing for the maintenance
of the wife."
The
Evaluation
[8]
With that backdrop I turn to evaluate the evidence to determine
whether the Plaintiff has made out a case for the relief she
is
seeking. In that determination, I will rely on the facts that are
common cause and undisputed, the credibility of the witnesses
and the
probabilities
(Stellenbosch
Farmers' Winery Group Ltd and Another v Martell et cie & Others
2003
(1) SA 11
(SCA) at para 5). The Plaintiff is burdened with
discharging the onus on a balance of probabilities. For the Plaintiff
to succeed,
the evidence must be such that, when she closed her case,
an order of absolution from the instance was not warranted. The
defendant's
failure to testify cannot justify a verdict for the
plaintiff unless there is enough evidence to enable the court to say
that having
regard to the absence of an explanation, the plaintiff's
version is more probable than not.
[9]
In support of the Plaintiff's case, the Plaintiff, her son, Guido
Tagliavini ("Guido") and one Lorraine Gregory ("Gregory")
testified. The Plaintiff's witnesses essentially corroborated her
evidence in certain respects. The Defendant closed his case without
calling any witnesses.
[10]
Adv
De
Waal Nigrini,
on
behalf of the Plaintiff, submitted that, in light of the totality of
the evidence as well as the undisputed documentary evidence
and the
undisputed period during which the parties lived happily and worked
purposefully towards their goal of a financially independent
retirement, the Defendant made the tactical decision not to testify
at his peril. He submitted further that the evidence called
for an
answer. In disputing the existence of a universal partnership, Adv
Jooste,
on
behalf of the Defendant, contended that, at the very best for the
Plaintiff on the evidence, it is difficult to come to any conclusion
other than the Plaintiff was conducting herself as an ordinary
spouse.
[11]
I do not think that on the facts of this matter an adverse inference
can be drawn because the Defendant did not testify or
tender any oral
evidence in support of his case. The Defendant under
cross-examination challenged practically every vital aspect
of the
Plaintiff's evidence and placed it in dispute. However, by not
testifying when he (the Defendant) was available to testify
and not
presenting oral evidence when such evidence was available, the
Defendant took the risk of the court deciding the issues
on the oral
evidence placed before it by the Plaintiff without the benefit of any
oral evidence presented by the Defendant. Depending
on the quality of
such evidence, it could be fatal to the case of the Defendant.
The
Credibility
[12]
With that background I now proceed to evaluate the evidence before
me. I will firstly evaluate the credibility of the witnesses.
I do
not think that the evidence of Guido or that of Gregory was seriously
challenged. Although the former was the son of the Plaintiff
and the
latter a friend of the son, I do not get the impression that they
were trying to mislead the court. They essentially gave
evidence of
what they saw and observed in their dealings and interaction with the
Plaintiff and the Defendant. The involvement
of Gregory was of a very
limited scope and for a very short period of time. It essentially
involved her observation of and interaction
with the parties on her
two visits to the farm as a guest. Her evidence is also substantially
corroborated by the Plaintiff and
Guido.
[13]
The involvement of Guido stretched over a much longer period and to a
greater extent. He was 16 years old when he was introduced
to the
Defendant. He described the Defendant as both loving and caring
towards both him and his mother. He was intimately involved
when the
parties experienced problems in their relationship and as a concerned
son of the Plaintiff, he tried to speak to the Defendant
in order to
resolve the differences between him (the Defendant) and his mother.
He was also instrumental in obtaining legal assistance
for his mother
and in negotiating a settlement between the Defendant and his mother
in respect of the eviction proceedings. He
instructed the attorney to
record the settlement in a letter which was confirmed and signed by
his mother and the Defendant. His
evidence is corroborated by his
mother and by certain documentary evidence. No reason has been
advanced by counsel for the Defendant
why the evidence of Gregory and
Guido should not be accepted. I accordingly accept their evidence.
[14]
In contrast to Gregory and Guido, the credibility of the Plaintiff
was seriously challenged by counsel for the Defendant. The
Plaintiff's evidence stretched over many days in court and covered a
long period of time, to be exact, almost 17 years. She was
taken
under extensive and intensive cross-examination. Such
cross-examination essentially concentrated on the allegations
contained
firstly, in the Founding Affidavit of her aborted Notice of
Motion proceedings in respect of the same relief and secondly, the
various amendments which were sought and effected to her Particulars
of Claim in the present proceedings. The Notice of Motion proceedings
were aborted on the advice of her present attorneys because of the
possible disputes of fact.
[15]
It was put to the Plaintiff by counsel for the Defendant that she was
evasive and fabricated her evidence. I do not think that
such
accusation was justified. Her evidence must be seen in the context in
which it was given, the time span over which it stretched
and the
nature of the evidence that was given. The Plaintiff's first language
is German. Although she was reasonably fluent in
English, she had
difficulty in understanding legal terms that lawyers take for
granted. She was baffled by some of these terms
such as "tacit",
"implied", "express" or "within the
contemplation of the parties" and
conceded that she did not know
how to answer certain questions based on such terms. This is
understandable as the Plaintiff is
a lay person. The contention by
counsel for the Defendant that the evidence of the Plaintiff was
crafted and shaped on the facts
of
Sepheri
v Scanlan
(supra)
is
highly speculative and no basis exists for such conclusion.
[16]
There were also certain errors in the pleadings which she found
difficult to explain. They were obvious errors. In the first
place,
the allegation that the Plaintiff agreed to resign from her post as
personal assistant and secretary upon the commencement
of their
cohabitation relationship on the facts are wrong. The undisputed
facts are that the cohabitation commenced in March 1989
whereas the
Plaintiff resigned her position just before they moved to Plettenberg
Bay, that is, in May 1998. In the second place,
the allegation that
they orally agreed to get married in March 1990 was an error. The
Plaintiff conceded that it should read March
1989 when they commenced
their cohabitation relationship. She could not explain how these
errors arose. She insisted that she did
not give the attorneys
instructions to that effect. In my view these mistakes were either
typographical errors or they were ostensibly
made by the attorneys
who drafted the pleadings. The Plaintiff's counsel, in my opinion,
correctly conceded that they were manifest
mistakes. I do not think
that these shortcomings and errors impact adversely on the
credibility of the Plaintiff.
[17]
One must not lose sight of the fact that the Plaintiff was testifying
on matters that spanned over a period of almost 17 years
years. With
the passage of time memories fade and details disappear in the mist
of time. One cannot blame her for not recalling
or remembering the
details of events in the absence of documentary evidence. In such
case, it is my view that it is sufficient
if she describes in broad
outlines such events in support of her version. In the circumstances,
I conclude that the Plaintiff was
a credible witness. Most of the
facts in her testimony were either common cause, or not challenged,
or were corroborated by her
witnesses, or by documentary evidence. In
the absence of other evidence to the contrary, I am constrained to
accept the evidence
placed before me in determining the issues in
this matter.
The
Universal Partnership
[18]
The first issue the court is called upon to determine is, whether on
the facts of this case, the Plaintiff has made out a case
against the
Defendant for the existence of a universal partnership. The Plaintiff
relied on an oral agreement alternatively a tacit
and/or implied
agreement of universal partnership brought about by the conduct of
the parties. I am going to examine the evidence
to determine whether
or not a universal partnership has come into being between the
parties.
The
Live-in Relationship:
[19]
The evidence is that in March 1989, the Defendant asked the Plaintiff
to move in with him as his life partner. He promised
to support her
and said that they could work together for a comfortable retirement.
He explained that he could not get married
to her at that stage
because the Will of his deceased wife contains clauses to the effect
that should he remarry within 10 years,
he would forfeit his share of
the inheritance to their sons. He promised to marry her after the
expiry of 10 years. She then moved
into his home in Benoni and they
lived together as man and wife. They shared a joint household for
their joint benefit. Plaintiff
told her "what is mine is yours".
In March 1994, the Defendant again promised to marry her as the
impediment that hindered
their marriage initially was removed by the
effluxion of time. In pursuance to such promise to marry, he gave her
a specially designed
engagement ring. She testified that had they got
married, the marriage would have been one in community of property.
They were
totally committed to the partnership. The Defendant used
German terms to describe their relationship namely,
"lebens
gefahrte" or "lebens genossen"
,
which meant that they give each other love and companionship as
partners for life or being committed to each other as partners
for
life. The Plaintiff testified that according to German custom, the
husband controls the financial affairs of the partnership.
Pooled
Financial Resources:
[20]
According to the Plaintiff they pooled their financial resources and
made joint financial decisions. At the inception of their
relationship, she sold her furniture and effects and contributed the
proceeds of approximately R10 000 to the partnership. She
sold her
car that she owned at the time and also contributed the proceeds
thereof to the partnership. She continued working as
a freelance
beautician and earned on an average R2 000 per month, which she
contributed towards their expenses. In August 1989,
after a lapse of
nine months, she resumed employment as secretary and personal
assistant to the managing director of Mannesman
Demag and contributed
her income to the partnership. She worked for approximately 10 years.
Her starting salary was R2 500 per
month and when she left she was
earning R5 600 per month. At the time she left the employ she had
between R2 000 and R3 000 in
her banking account. A substantial
amount in the region of R100 000 had also accrued in her provident
fund. She could not take
out the proceeds, but could transfer it to
another fund.
[21]
At the time they started their live-in relationship, the Defendant
was conducting a successful engineering business, which,
according to
the Plaintiff, was his contribution to the universal partnership. He
was also the owner of the property in Benoni
in which they lived.
These properties were registered in the name of a company, known as
Ponelat Properties (Pty) Ltd, for tax
purposes. He was the sole
shareholder and director of the company. In or about 1997 they
purchased a farm in Plettenberg Bay. The
farm was acquired to develop
for retirement purposes. The Defendant's dream was to acquire a
hunting farm. She was prepared to
share the dream with him. The farm
was registered in the name of the company. She regarded the company
as part of the partnership.
They relocated to the farm in and during
1999. According to Gregory, the Defendant said that the construction
of the cottages as
tourist accommodation was to keep the Plaintiff
busy. The farm was funded from the proceeds of the sale of the
engineering business
and the properties in Benoni. In and during
2003, they bought another property in Plettenberg Bay, situate at 45
Robberg Road.
This was funded from the sale of the farm.
[22]
From the proceeds of the sale of the farm an amount of R600 000 was
paid to the Defendant's son for his involvement on the
farm and an
amount R1.2 million was invested in a joint retirement fund with Old
Mutual. Under cross-examination it was put to
her that the
improvements on the farm were effected by the Defendant's son and she
retorted that the son got his share for improving
the farm, but she
did not get her share for doing so. The value of both the farm and
the Robberg property was substantially increased
because of the
improvements made to them. For effecting such improvements to the
properties, she contributed her skills, labour
and expertise.
[23]
The Plaintiff also urged the Defendant to purchase a building from
which the engineering business in Benoni was conducted instead
of
renting the premises. She motivated the proposal by stating that
instead of paying rent, payments could be made to acquire the
property. The Defendant accepted her advice and bought the property.
Guido confirmed these facts in his testimony. The property
was
subsequently sold and the proceeds were used to fund the purchase of
the other properties. The Plaintiff also told the Defendant
to hold
out for a better price for the farm and by so doing he realised an
extra amount of R500 000 for the sale of the farm.
Pooled
their Skills and Labour:
[24]
The Defendant was involved full time in the engineering business and
contributed his skills and labour in sustaining and running
the
engineering business. His involvement in the business left him very
little time to do anything else. Nine months after she
moved in with
him, he asked her to give up her work and serve his needs on a full
time basis. He agreed to provide for all her
needs. She did all the
household chores, provided for all his needs and comfort, entertained
friends and guests and business associates
and they went on holiday
together. She also served as his confidante, friend, adviser and
hostess. She also assisted him in his
business from time to time and
more especially when his secretary was absent or on leave when she
would fulfil her role in the
business. After she resumed employment
in August 1989 on a full time basis, she continued to serve him as
before by seeing that
his personal, physical and emotional needs were
met and, in addition, assisted him with administrative functions
after hours and
during lunch times in the business. She also
continued to act as his hostess by arranging social functions and
parties for business
associates and friends.
[25]
After they relocated to the farm in Plettenberg Bay, the Plaintiff
was actively involved in improving and running the farm.
She assisted
with the construction of two self-contained flats to generate
additional income for the farm. She designed and furnished
the flats.
She supervised the workmen and purchased the materials. The
improvements effected to the farm substantially increased
the value
of the farm. After its construction she managed the two apartments as
a tourist accommodation and generated income for
the partnership. She
also assisted in rearing and feeding cows and oxen. She assisted with
the felling of trees on the farm which
netted approximately R70 000
for the partnership.
[26]
She also conducted the administrative, bookkeeping and clerical
functions on the farm. She entered into negotiations and concluded
agreements with employees on the farm and engaged in labour related
disputes with employees and conducted disciplinary proceedings.
She
also ensured compliance with labour related matters, performed tax
related services and conducted correspondence and negotiations
with
SARS and the Department of Labour in connection with farming
operations and negotiated leases with prospective tenants. In
support
of such assertions, she handed in as exhibits a series of
administrative documents. These exhibits were not disputed by
the
Defendant. She continued to act as his confidante, advisor, companion
and partner. In support of these activities on the farm,
the
Plaintiff presented photographs as exhibits. These exhibits were not
challenged by the Defendant. They reflected both social
and business
activities on the farm. She was corroborated on her involvement at
the farm by both her son, Guido and Gregory.
[27]
After the farm was sold, they moved into 45 Robberg Road, Plettenberg
Bay on 1 December 2003. They made substantial improvements
to the
Robberg Road property, including the conversion and erection of two
additional apartments. The Plaintiff was actively involved
in the
renovation, refurbishing and improvement of the property. According
to her the bigger apartment was let out to generate
income for the
partnership and the smaller apartment was used for friends and
guests. She continued to perform the administrative
functions as
before when they relocated to 45 Robberg Road. The relationship
between the parties soured while they were residing
at this address
and it is common cause that the relationship between the parties came
to an end on 1 April 2005. A trade reference
dated 11 April 2005
given by the Defendant on behalf of the Company, corroborates the
evidence of the Plaintiff that she served
as freelance hostess,
entrusted with the task of ensuring that the accommodation for
tourists were in a clean and proper condition,
that their transport
and itinerary were organised, their meals were arranged and their
needs were taken care of.
Findings:
[28]
On the above facts the court must determine whether the Plaintiff has
established, on a balance of probabilities, the existence
of a
universal partnership between the parties. On the evidence placed
before me, I am of the view that the Plaintiff has failed
to prove
the existence of an express or oral agreement of a universal
partnership between the parties. I now turn to examine whether
on the
facts the Plaintiff has succeeded in establishing the existence of a
tacit and/or implied agreement of a universal partnership
between the
parties.
Hoexter
JA,
in
Muhlmann
v Muhlmann
(supra)
at
123H-I quoted with approval the following remarks of
McCreath
J
in
the court
a
quo:
"In
the situation where one has to do with a relationship between spouses
and there is no express agreement between the parties
the Court must
be careful to ensure that there is indeed an animus contrahendi and
the conduct from which a contract is sought
to be inferred is not
simply that which reflects what is ordinarily to be expected of a
wife in a given situation."
[29]
In my view it is clear from the facts of this case that the services
rendered by the Plaintiff manifestly surpasses those ordinarily
expected of a wife in her situation. The true enquiry therefore is
whether it is more probable or not that a tacit agreement had
come
into existence
(Muhlmann
v Muhlmann
(supra)
at
124C). Taking into consideration the reason and purpose of the
live-in relationship, the pooling of their finances, the pooling
of
their skill and resources, the joint investments made by them to
secure their retirement, I conclude that there was
animus
contrahendi
between
the
Plaintiff
and the Defendant and it is more probable than not that a universal
partnership had come into existence between the parties.
[30]
The probabilities favour such conclusion because firstly, the parties
held two insurance policies with one lump sum premium
payment and the
proceeds thereof was payable to the survivor on the death of the
partner; secondly, the Defendant applied in the
name of the parties
for membership of a retirement village; thirdly, in terms of a letter
dated 28 October 2004, if the Plaintiff
should remain living with the
Defendant until his death, he has made her a beneficiary in his Will,
but should she wish to separate
from him he would pay her R200 000
immediately; fourthly, in terms of a written settlement dated 18
August 2006 and signed by the
parties personally, the Defendant
agreed to advance the Plaintiff certain moneys to secure her
alternative accommodation on condition
that the monies so advanced
will be set off against any award made against him arising from the
proceedings instituted by the Plaintiff
for the dissolution of the
universal partnership; fifthly, the Defendant, in an application in
terms of the Domestic Violence Act
under the heading
"Nature
of domestic relationship with the person who committed the act of
domestic violence",
describes
himself as
"ex-partner";
sixthly,
in leasing the business premises registered in the name of the
Company, the lessor is described as G & E Ponelat who
are the
Defendant and the Plaintiff; seventhly, it seems highly unlikely that
she would have devoted so much of her time, energy,
skill and labour
simply with the view that the Defendant increases his estate and
lastly, had the Defendant opted to get married
to her, she would have
insisted in getting married in community of property, which would
have ensured that she shared equally in
the joint estate..
The
Dissolution of the Partnership:
[31]
I now turn to discuss the dissolution of the universal partnership.
It is common cause that the relationship between the parties
finally
came to an end on 1 April 2005, when the Plaintiff moved out of the
common home at 45 Robberg Street, Plettenberg Bay and
moved into the
flat on the property
(Fink
vs Fink
1945
WLD 226).
The Plaintiff testified that in and during 2004, the
Defendant was involved in certain life threatening incidents. She
felt financially
insecure. She insisted on receiving written
confirmation that she was entitled to a half share of the partnership
estate. The Defendant
made certain offer which was alluded to above,
but she rejected the offer. She then started experiencing problems in
their personal
relationship. She became disillusioned when it became
clear to her that he was reneging on his promise to marry her and to
secure
her partnership interest in writing. In my view the universal
partnership came into existence on 4 March 1989 and was terminated
as
at 1 April 2005.
Remedies
for Dissolution of the Universal Partnership:
[32]
Our common law recognises two legal remedies for the dissolution of a
partnership. The one is known as the
actio
pro socio
and
the other is known as the
actio
communi dividundo.
Joubert
JA,
in
Robson
v Theron
1978
(1) SA 841
(A) deals extensively with the characteristics and
application of these two remedies. These two remedies can overlap in
certain
respects. In this matter there was no agreement between the
partners for the dissolution of the partnership and the manner in
which
the partnership is to be liquidated and wound-up. On the facts
of this case the most suitable remedy to liquidate and wind-up the
partnership is by means of the
actio
pro socio.
The
court has a wide equitable discretion and in the exercise of such
discretion the court may appoint a liquidator to realise the
partnership assets for the purpose of liquidating the partnership
debts and to distribute the balance of the partnership assets
or the
proceeds amongst the partners.
The
Interest of the Parties in the Universal Partnership:
[33]
Before deciding what order to make, it is imperative that I decide in
what proportion the parties are to share the nett estate
of the
universal partnership. The Plaintiff contends that they should share
equally. It is settled law that, in the absence of
any agreement
between the parties, on dissolution of the partnership, each party
gets a proportionate share of the assets according
to his or her
contribution. When the contribution of the parties is equal or it is
impossible to determine that the one party had
contributed more than
the other, then they share equally
(Fink
v Fink
(supra);
and
Isaacs
v Isaacs
(supra)
at
961).
[34]
It is common cause that the Defendant and his deceased spouse built
up the engineering business together. At the time when
the live-in
relationship commenced, the Defendant had a flourishing business. For
the major part of their stay in Benoni, other
than for a very short
period of time, the Plaintiff was employed on a full time basis. She
contributed her income to the partnership.
Although she was not
active in the business, she assisted the Defendant in the business
from time to time on a casual basis. The
Defendant sold the business
and the properties in Benoni and contributed the proceeds to purchase
the farm in Plettenberg Bay.
The Plaintiff was actively involved on a
full-time basis on the farm and contributed her labour and time to
the development of
the farm. The farm was subsequently sold and the
proceeds were use to acquire and develop the 45 Robberg Road
property. The Plaintiff
was also instrumental in developing the said
property and likewise contributed her labour and time thereto. It was
also because
of her insistence that the farm realised and amount of
R500 000 more than the Defendant was prepared to sell the farm for.
However,
I do not think that the contribution of each party to the
universal partnership was equal. I am of the view that the
contribution
of the Defendant both in terms of time, labour and
capital was greater than that of the Plaintiff. In the circumstances
I am called
upon to determine in what proportion each contributed to
the partnership.
[35]
The objective fact is that the Defendant indicated that if she
remained living with him until his death, she would inherit
one-third
of the balance of his current account with Nedbank, one-third of his
investment in unit trusts with Old Mutual, a Mercedes
Benz C220,
which was valued at R300 000, one sixth-share in the 45 Robberg
property and the right of occupation in the bigger flat
at the
property, free of charge until her death or remarriage. On the other
hand, if she wished to separate immediately, he was
prepared to pay
her a sum of R200 000. The Plaintiff rejected the offer. In light of
the concession made by the Defendant in respect
of the property which
is registered in the name of the Company and the evidence of the
Plaintiff that the Company formed part of
the universal partnership,
I conclude that the assets and liabilities of the Company, as at the
date of the dissolution of the
partnership, for all intents and
purposes, form part of the assets and liabilities of the universal
partnership. In the circumstances,
I am of the view that a fair and
equitable distribution of the nett assets of the universal
partnership is that the Plaintiff is
entitled to 35% and the
Defendant is entitled to 65%.
[36]
Counsel for the Plaintiff argued that even if the Plaintiff was
successful in her main claim, the court should order the Defendant
to
pay maintenance to the Plaintiff retrospectively from the date of
issue of Summons to the date upon which the Plaintiff receives
her
share. In my view there is no merit in such argument because the
claim for maintenance was based as an alternative claim to
the main
claim. In my view there are no legal grounds to sustain such a claim.
Breach
of Promise to Marry:
[37]
I now turn to deal with the second claim. The second claim deals with
the breach of promise to marry. The case for the Plaintiff
in respect
of the second claim is pleaded as follows:
(a)
that during March 1989 and at Johannesburg, the parties agreed to
marry;
(b)
that in or about March 1990 and at Johannesburg, the Plaintiff and
the Defendant entered into an oral agreement in terms whereof
they
agreed to become engaged to marry;
(c)
that on 4 March 1994 the Defendant again promised to marry the
Plaintiff by asking her hand in marriage and by handing her a
specially designed engagement ring.
The
Defendant's case was essentially one of a denial.
The
Requirements for the Remedy of Breach of Promise:
[38]
Breach of promise to marry is a remedy which is
sui
generis
and
has features in common with an action based on contract and an action
in delict. It not only amounts to a breach of contract,
but also
constitutes a wrong against the injured party. It entitles the
injured party not only to claim damages for breach of contract,
but
she can also claim delictual damages arising from
contumelia
or
injuria.
[39]
Lawyers have been debating whether the breach of promise action is an
appropriate remedy in our present day legal system. Some
of them have
been arguing that the remedy is inimical to the mores of our present
day society and has become antiquated. They have
argued that the
action should be abolished as in other jurisdictions. Our courts have
also expressed reservations in the retention
of the remedy in light
of the values entrenched in the Constitution. The Supreme Court of
Appeal
in
Van
Jaarsveld v Bridges
(344/09)
ZASCA 76 (27 May 2010)
mero
motto
raised,
but did not decide the issue.
Harmse
DP
considered
the statement of
Davis
J
in
Sepheri
v Scanlan
(supra)
relating
to the reconsideration of the breach of promise action and said the
following:
"...I
do believe that the time has arrived to recognise that engagements
are outdated and do not recognise the mores of our
times, and that
public policy considerations require that our courts must reassess
the law relating to breach of promise . In what
follows I intend to
give some guidance to courts faced with such claims without reaching
any definite conclusion because this case
is not affected by any
possible development of the law and can be decided with reference to
two factual issues, namely, in relation
to injuria, whether the
breach was contumacious and, secondly, whether Bridges has suffered
any actual loss as a result of the
breach."
Although
our courts have questioned the need for the existence of the action
in light of the values and mores of our new constitutional
dispensation, it has not been overruled as a remedy. However, it will
not be necessary for me to decide the issue for reasons that
will
become apparent later. I will for our purposes accept that the
Plaintiff is entitled to rely on such remedy.
[40]
The Plaintiff's claim is based on a contumacious breach of contract
to marry. From the pleadings it is clear that the Plaintiff
is
claiming only delictual damages for breach of promise. In order for
her to succeed with her claim, she must show, firstly, on
a balance
of probabilities, that
animus
contrahendi
was
present at the time the promise to get married was made by the
Defendant and accepted by her; secondly, that there was a breach
of
such promise and thirdly, that the breach was wrongful in the
delictual sense and contained the element of
animo
injuriandi.
I will assume in favour of the Plaintiff firstly, that the parties
concluded a contract to marry and secondly that the
Defendant
breached such contract. As the Plaintiff's claim is based on the
actio
injuriarum,
I
will concentrate on the third requirement namely, whether the breach
was wrongful in the delictual sense and whether it was injurious
or
contumelios.
[41]
The requisites for the establishment of
actio
injuriarum
are
first, an intention to injure, namely,
animus
injuriandi;
second,
a wrongful act; and third, an impairment of the
dignitas.
In
such an enquiry if the second requisite, namely, the wrongfulness of
such an act has been established, the first requisite, namely,
animus
injuriandi
will
be presumed and the third requisite namely, the impairment of the
dignitas
will
have to be established. On the other hand if the wrongfulness of the
act is not established, the claim fails. In order to determine
whether the conduct complained of is wrongful, the test is an
objective one and the Court applies the criterion of reasonableness
and such conduct is tested against the prevailing norms in society
(De
Lange v Costa
1989
(2) SA 857(A)
and
Van
Jaarsveld v Bridges
(supra).
[42]
Applying the criterion of reasonableness and assessing the conduct of
the Plaintiff before, during and after the breach objectively
and in
accordance with the prevailing norms in society, I conclude that such
conduct militates against the element of wrongfulness
in the
delictual sense. I say so for the following reasons. Firstly, in
response to the Plaintiff's demand that he either commits
himself to
a date of marriage or to something in writing that they were equal
partners, the Defendant, in terms of a letter dated
28 October 2004,
made her generous offer. In terms of such offer, he gave her two
options. The one was to the effect that if she
should continue living
with him until his death, he has generously beneficiated her in his
Will. The other was to the effect that
should she decide not to
continue their relationship, he was prepared to give her a cash
payment of R200 000.00. She rejected the
offer out of hand.
[43]
Secondly, when she moved out of the common home, she moved into a
flat on the same property. Thirdly, at the time, she had
the use of
the Mercedes-Benz, which she continued using. Fourthly, a few days
after she moved out of the common home, he gave a
written
testimonial, dated 11 April 2005, and described her as honest,
reliable, hard-working and a gracious hostess. Fifthly,
after she
moved out of the common home and into a flat on the property the
parties brought protection orders against each other
but such matters
were mutually settled through the intervention of the Plaintiff's
son. Fourthly, he instituted ejectment proceedings
against the
Plaintiff and the matter was once more settled by mutual agreement
through the intervention of the Plaintiff's son.
In terms of the
settlement, the Defendant advanced certain monies to the Plaintiff
for alternative accommodation and agreed to
set off such money
against any monies that becomes payable to her in the terms of the
universal partnership. Such settlement agreement
was personally
signed by the parties.
[44]
Sixthly, in and during 2006, the Plaintiff approached the Pastors of
the Evangelical Lutheran Church to counsel the parties
because the
Plaintiff "was
trying
to solve problems within the struggling relationship"
as
evidenced in a statement signed by the Pastors and dated 24 June
2007. It appears even after the parties separated, there was
still
some hope that the parties could be reconciled. Seventhly, that the
Plaintiff, at all material times, wanted to secure herself
either
through the mechanism of marriage or through the mechanism of a
universal partnership. I have found that a universal partnership
had
come into existence but not in the proportion that she had claimed.
Lastly, it is my view that the actions of the parties described
above
are not motivated by malice, ill-feeling or
contumelia
but
appear to be genuine attempts on their part to resolve their personal
relationship and their proprietary rights.
[45]
Because of my findings, it is unnecessary to deal with the other
requisites of the
actio
iniuriarum.
It
is assumed that no
injuria
was
committed. In the circumstances her claim for breach of promise must
fail.
The
Order:
[46]
In the result the following order is made:
(A)
In respect of the first claim:
(i)
That
a universal partnership existed between the Plaintiff and
the
Defendant and the Plaintiff had a 35% (thirty five per cent)
share in such partnership and the Defendant had a 65% (sixty five per
cent) share in such partnership;
(ii)
that
the said partnership was dissolved with effect as from 1 April
2005;
(iii)
that
the Defendant is directed to prepare and deliver to the Plaintiff
a
statement of account of his administration of the business of
the universal partnership from the inception of the partnership i.e.
4 March 1989 until the termination of the partnership i.e. 1 April
2005, duly supported by vouchers, books of accounts and other
source
documents and in accordance with generally accepted accounting
practices, within 3 (three) months of the date of this order;
(iv)
that
the Plaintiff and the Defendant are directed to debate the statement
of account referred to in the preceding clause on a date
to be agreed
between the parties within 14 (fourteen) days from the delivery of
the statement of account and should the parties
be unable to reach an
agreement thereto, the Registrar is directed to arrange a date for
the debatement of the statement of account
between the parties;
(v)
that
the Defendant is directed to effect payment of the amount that
appears to be owing to the Plaintiff and/or is directed to deliver
the asset or assets of the universal partnership that has/have been
distributed or is to be distributed to the Plaintiff after
delivery
of the statement of account and/or debatement thereof;
(vi)
that
either of the parties is granted leave to approach this court
for
further directions as circumstances may dictate on the same
papers as supplemented including but not limited to the question of
whether the Plaintiff is entitled to
mora
interest
from date of dissolution of the universal partnership to date of
payment.;
(vii)
that
the Defendant is ordered to pay the Plaintiffs costs.
(B)
In respect of the second claim the Plaintiff's claim is dismissed
with costs.
E.
MOOSA