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[2011] ZAGPPHC 168
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D.A.U v I.J.U (Born W) (6070/2008) [2011] ZAGPPHC 168 (16 September 2011)
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 6070/2008
Date:
16 September 2011
In
the matter between:
U,
D
A
..............................................................................................................................
Plaintiff
And
U
I J (BORN
W)
..........................................................................................................
Defendant
JUDGMENT
PRETORIUS
J,
The
plaintiff instituted action against the defendant for the division of
the joint
estate
of the societas universorum bonorum. The parties were married to each
other on 5 August 1994 in community of property which
marriage was
dissolved by a decree of divorce on 23 June 1995. The plaintiff is
Polish and is not fluent in the English language.
It is further
common cause that there was a brief separation between the two
parties in 1995. They moved into the same house at
Kronendal Flats
during 1995 where they lived until December 1996.
According
to the plaintiff the defendant and he had been in a cohabitation
relationship for twelve years. Since living together
in the Kronendal
Flats according to the plaintiff, there was a tacit agreement of
partnership between the parties comprising of
their movable and
immovable assets. This partnership came into effect in December 1995
when the plaintiff moved into the defendant's
house at her request.
The pleadings set out that the terms of the agreement were that
parties would contribute towards the living
- and other expenses of
one another and both would contribute to the expenses for acquiring
the immovable property. According to
the pleadings the plaintiff
would contribute more to the common household than the defendant. A
further term of the agreement was
that at the dissolution of the
relationship the parties would share equally in the profits.
The
plaintiff requested the court to find that there existed a
partnership between the parties regarding the right, title and
interest
in the immovable property, as well as the furniture and
household effects in the parties' possession during November 2006
when
they finally separated. The defendant denied that any such
partnership existed after she had divorced the
plaintiff
in 1995.
Mr
Urbanski, the plaintiff, gave evidence that he had only found out
about the divorce in 2007, although the defendant told him
in June
1995 that they were divorced and he had to move out, which he did. He
further admitted that the summons had been served
on him personally
on 6 June 1995. He moved to Westlife House after the divorce where
the plaintiff visited him and even stayed
overnight. In 1996 he moved
to Kronendal Flats and the defendant lived with him. They were living
as husband and wife. The uncontroverted
evidence by both parties was
that during the period 1996 to 2006 the defendant had completed and
signed numerous forms as the plaintiff's
wife. The defendant wrote to
the plaintiff's mother on 30 October 1996, 2 May 1996 and 25 March
1996. These letters were clearly
written as a daughter-in-law who was
living with her husband. I refer to the contents of the letter which
she wrote on 2 May 1996
as an example:
"He
doesn't like to write but Mum be assured we love you, and our plans
for the future definitely include you. We will talk
about it in more
details when we see each other in Poland.
Dear
Mum, lately Derek is very healthy but I think you will be able to see
and judge for yourself when looking at his photographs
which I send
in my previous letter. I care about him and make sure he takes his
vitamins everyday and this way he stays healthy.
It Is true, 8 months
ago he stop smoking."
and
"He
relies on me and me on him and there is respect and balance
between
us. He is a good loving partner, opponent or friend in life."
The
court cannot accept the defendant's explanation that she had made up
these letters to pacify the plaintiff's mother as his mother
had not
known that they were divorced. She could give no cogent reason for
acting in this way. The mention of wanting children
also indicates
that she and the plaintiff were a couple at that stage and that she
wanted children with the plaintiff.
It
is clear that the immovable property at 14 Hawkshaw Street,
Vanderbijlpark, belonged to the defendant. The house was bought for
her and registered in her name by her previous employer. This was
done as part of a settlement agreement that had been reached
due to a
court case between the defendant and her employer. These facts were
admitted by the plaintiff under cross examination
and there can be no
doubt that he had not contributed in any way to the acquisition of
the house.
The
plaintiff averred in his particulars of claim that the house was
bought with the money his mother had sent to him from Poland.
This
version of the plaintiff is rejected as there was no evidence to
support it. Even the plaintiffs own evidence did not support
his
pleadings.
On
2 May 2005 the defendant had indicated on the "Expression of
Wish" form of Air Products Provident Fund that she was
the wife
of the plaintiff. On 3 January 1996 the defendant completed the
inland revenue form where she again indicated, on behalf
of the
plaintiff, that they were married. This confirms that the defendant's
defence that she did so at the request of the plaintiff
to ensure
that he refunded the money she owed him was repaid, cannot be
entertained seriously, as this form was a government form
which did
not relate to any money owed to the plaintiff.
The
court accepts that the plaintiff gave his whole salary to the
defendant when they were living in Kronendal. The eleven thousand
dollar which the plaintiff's mother sent from Poland was used to fix
the house and to buy the Ford Laser according to the plaintiff.
The
plaintiff testified that there was no agreement between himself and
the defendant to have the money paid back to him as he
had treated
the relationship as a proper marriage in all respects and did not
expect to be repaid. The defendant, as his wife,
and her brother, as
his brother-in-law, even vouched for the plaintiff on 7 August 2000
to enable him to obtain a licensed firearm.
On
2 May 2005 the defendant had completed the membership application
form for the Discovery Medical Aid. This form clearly stated
that the
defendant was the spouse of the plaintiff and that her mother was a
dependant of the plaintiff.
According
to the plaintiff they moved into 14 Hawkshaw Street at the end of
1997 where they stayed until the plaintiff left on 1
January 2005 to
do contract work in Namibia. The defendant rented the property out
and went to stay with her mother without informing
the defendant of
the move. The defendant had access to his bank account and had a bank
card of her own which she could use to withdraw
money from the
plaintiff's bank account. The rent she received from 14 Hawkshaw
Street was hers alone and the plaintiff did not
receive any of it -
in fact he did not even know what the rent was.
When
he returned he went to live with the defendant at her mother's house,
although her mother had not been talking to him at all.
The
defendant's evidence that the plaintiff rented a room for R2000.00
was admitted by the plaintiff, but according to him it
was for
utilities and food. Mrs Kraus, his previous mother-in-law, testified
that it was to pay back the defendant, although the
defendant's
contradictory evidence was that it was for utilities and food -
thereby corroborating the plaintiff's evidence. The
further evidence
was that the plaintiff fetched his mother from Poland to visit. He
and his mother stayed at the defendant and
his previous mother-in-law
for the approximately six months of her visit.
The
court rejects the evidence of the defendant that when the plaintiff
and his mother arrived they immediately sat down and she
informed the
plaintiff's mother that they had been divorced and that he had been
arrested for theft. This version was never canvassed
with the
plaintiff, although it is clear that it is an important aspect of the
defendant's evidence. Her version that she had told
her current
boyfriend at the time not to visit her whilst the plaintiff and his
mother were there is so implausible as to be untrue.
If the
plaintiff's mother had been informed of the divorce there would have
been no reason to keep her boyfriend a secret.
During
November/December 2006 there was an altercation between the
plaintiff, the defendant and the defendant's mother which resulted
in
the plaintiff moving out. The defendant indicated to the plaintiff
that she was tired of the plaintiff and evicted him from
her mother's
house.
The
defendant's evidence that she was very angry with the plaintiff after
she had read the letter that he had written to his mother
on 9 April
1995 is accepted as the truth. This letter was derogatory in the
extreme and caused her to divorce the plaintiff in
1995. It is clear
from the defendant's evidence that she had supported the plaintiff
financially, as well as emotionally, after
the divorce whilst they
were living together. She had bought the plane tickets for him to
fetch his mother from Poland; she supported
him when he was
unemployed; she paid the instalments on his car and was forced to
sell it at a loss when the plaintiff was arrested
for theft. There is
no evidence that she claimed payment from the plaintiff for these
amounts that she had paid on his behalf.
There is no evidence of what
the amounts were that were owed to her or any evidence as to what it
was for. Whilst the plaintiff
was working in Namibia the defendant
moved his belongings to another room. At his return the defendant
informed him that she did
not want to live with him anymore.
On
2 December 2006 the defendant evicted the plaintiff from her mother's
house. She made a list of movables which the plaintiff
took with him
and he had to sign for it, which he did. According to the defendant
this was the only possessions that he owned.
The
plaintiff had to prove an universal partnership to succeed in his
claim. In Muhlman v Muhlman
1984 (3) SA 102
(A) Hoexter JA held that:
"When
parties in all material respects act like partners in respect of a
certain venture, without entering into a normal explicit
partnership
agreement, but by implication and through their conduct act as
partners in respect of such a venture, a universal partnership
ensues."
In
order to prove that a universal partnership existed the plaintiff has
to prove on a balance of probabilities:
1.
that a universal partnership came into existence between the parties
at all;
2.
if so, that it came into existence at the time alleged by the
plaintiff;
3.
and, exactly how it came into existence;
4.
exactly what were the terms of the partnership; and
5.
exactly to what assets did it relate.
According
to the plaintiff's pleading the material terms of the tacit
partnership agreement were:
"11.1
The parties were to be equal partners in respect of their activities;
11.2
Each party would contribute towards the living and other expenses of
the parties and expenses in regard to the acquisition
of the
immovable property, even though it was expected that the Plaintiff
contribute more to the common household than the Defendant;
11.3
The parties would be entitled to an equal share of the profits;
11.4
On termination of the relationship between the parties, the
partnership would be dissolved and the assets and liabilities thereof
would be divided between the parties in equal shares;"
There
is no mention that the partnership was conducted for profit. The date
on which the tacit agreement was entered into had also
not been
defined by the plaintiff except stating that it was during December
1995. There is no evidence before court that the plaintiff
had
contributed more to the household or living expenses of the parties.
This was contrary to the plaintiff's pleadings. The contrary
was true
as the evidence was that the plaintiff was unemployed at various
times when the defendant had to maintain him. She was
employed
throughout the relationship. The plaintiff stated that the
partnership came into effect in December 1995 when the defendant
invited him to stay with her. This version is totally denied by the
defendant.
In
Francis v Dhana
[2006] JOL 18401
(N) Murugasen AJ found at p 16:
"As
it is common cause that there was no express agreement between the
parties to this action, there can be no universorum
bonorum between
them."
and
at p 18:
"A
further unsatisfactory aspect of the plaintiff's case is that while
she has alleged that in entering into the universal
partnership she
undertook to make specific contributions to the partnership
(paragraph [5]), the pleadings are silent as to any
undertaking by
the defendant, save for the allegation in paragraph [6] that both
parties contributed labour, services, money and
skills, lived on the
defendant's income and the profits made by the plaintiff and acquired
assets, which conduct constituted universal
partnership in equal
shares. (Court's emphasis)
In
Fink v Fink
1945 WLD 226
the court held that all the elements of a
partnership in respect of the specific joint commercial enterprise
had to be proved before
the court could find that a universal
partnership existed."
In
the plaintiff's pleadings there is no reference to any undertaking by
the defendant as to her contribution to the partnership.
It is clear
from the evidence that the plaintiff and defendant lived together as
husband and wife from December 1995 until December
2006. The court
cannot accept the defendant's evidence that she was only trying to
help the defendant to obtain work. The evidence
that she completed
all the various forms referring to herself as "spouse" and
"wife" to ensure that she got
her money back from the
plaintiff cannot be accepted, but indicates that they were living
together.
The
defendant was flustered under cross-examination and her explanation
as to her conduct whilst the plaintiff's mother was visiting
for 6
months is not true. She tried to explain her dishonestly regarding
the completion of the forms as helping the plaintiff,
but the court
finds that she had completed the forms as the "wife" of the
plaintiff. Her evidence that the plaintiff
rented a room at her
mother's house, although her mother disliked the plaintiff thoroughly
and did not speak to him is so improbable
as to be untrue. It is
clear they lived at her mother's house as partners until the
defendant evicted the plaintiff from the property.
The
evidence was overwhelming that the immovable property was the
property of the defendant and that the plaintiffs pleadings were
misleading in this respect.
The
plaintiff explicitly gave evidence that there was no agreement
between him and the defendant to repay any of the $11000 that
he had
spent on the house and the car. The list of his contributions
attached to the summons was carefully canvassed by counsel
for the
defendant and it is clear that the plaintiff's contention that he had
contributed to the partnership through installing
and providing these
items is not true in all respects. The defendant had written proof
that she had paid for all renovations to
the house as set out in the
list. The plaintiff agreed under cross examination that he had
misrepresented some of the items and
that he had not paid for it.
This
court finds the plaintiff's evidence in this regard as untrue and
finds that he did not contribute to the house in the manner
he wanted
the court to believe in his pleadings.
In
McDonaid v Young (292/10)
[2011] ZASCA 31
(24 March 2011) Theron JA
found at par 14:
a[14]
The appellant bore the onus of proving the agreement upon which he
relied as well as the terms thereof. Having regard to the
deficiencies in the appellant's evidence and the probabilities, it
cannot be said that it measures up to the standard required
for
acceptability in respect of the existence of the joint venture
agreement" (Court's emphasis)
This
court finds that the plaintiff's evidence contradicted his own
pleadings as to the acquisition and ownership of 14 Hawkshaw
Street,
Vanderbijipark. Furthermore, when he finally left the defendant in
December 2006 he had signed that he had received the
movables
belonging to him, without indicating that he had not received all his
possessions.
Therefore
I find after considering all the probabilities and improbabilities
that the plaintiff and defendant did cohabit until
he left for
Namibia. However, due to the deficiencies in the plaintiff's evidence
and having regard to the pleadings and the contradictions
with his
evidence the plaintiff has not proved the existence of the joint
venture agreement on a balance of probabilities.
There
is in any event no evidence that the property is an asset in the
universal partnership or that it was ever intended by the
defendant
that the plaintiff should share in the house. There is furthermore no
evidence that there was a consensual contract between
the plaintiff
and defendant to enter into a joint venture. It is not proved on a
balance of probabilities that the parties pooled
their
resources for the benefit of one another. Therefore the court cannot
find that a universal partnership existed in these circumstances.
The
order is:
1.
The action is dismissed with costs.
Judge
Pretorius
Case
number : 6070/2008
Heard
on : 6 September 2011
For
the Applicant / Plaintiff : Adv Thompson
Instructed
by : Stopforth Swanepoel & Brewis Inc
For
the Defendant : Mr Uys
Instructed
by : Piet Uys
Date
of Judgment : 16 September 2011