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[2010] ZAECPEHC 72
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Mncora v Butters, Butters v Mncora (881/2008, 3055/2010) [2010] ZAECPEHC 72 (7 December 2010)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case No: 881/2008
In the matter between:
NOMSA VIRGINIA MNCORA
…...........................................................................
Plaintiff
And
ANDREW KINLOCH BUTTERS
…..................................................................
Defendant
And
In the matter between: Case No:
3055/2010
ANDREW KINLOCH BUTTERS
….......................................................................
Plaintiff
And
NOMSA VIRGINIA MNCORA
…......................................................................
Defendant
Coram:
Chetty, J
Heard:
22 November 2010
Delivered:
7 December 2010
Summary:
Cohabitation
– Universal Partnership – Formation – Can be
entered into tacitly – Man and woman living together
continuously for nineteen years – Agreement to commence
business – Business located in one city and family home in
another – Man residing with woman over weekends –
Weekdays at business – Family home acquired – Essentials
for universal partnership established – Breach of promise to
marry – Merits conceded – Quantum – R25 000.
00
offered – Eviction – Existence of universal partnership –
Woman not unlawful occupier
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
Introduction
[1] This is a case about a
cohabitation relationship between the plaintiff and the defendant
which endured for nineteen years and
produced offspring. It ended
abruptly on 1 January 2008. At the time the plaintiff lived and
continues to live in a house situate
at 9 Rubin Crescent,
Summerstrand, Port Elizabeth, I shall henceforth refer to the
premises as the common home, as will become
clear in due course. The
termination of the cohabitation relationship has the consequence that
the plaintiff has no special right
to occupy the common home and, as
I shall in due course elaborate upon, the defendant seeks an order
for her ejectment, contending
that she is an unlawful occupier.
Success for the defendant in that action will render the plaintiff
and the minor children homeless.
In order to avoid being reduced to a
state of penury as a result of the termination of their cohabitation
the plaintiff has posited
her case against the defendant in the law
of contract alleging the existence of a universal partnership between
them. The consequence
of cohabitation is described by Sinclair
1
as:-
“
The
general rule of our law is that cohabitation does not give rise to
special legal consequences, no matter how long the relationship
has
endured. Apart from limited statutory interventions which have
conferred on cohabitants some of the rights and duties which
attach
to spouses, the law has largely ignored cohabitation. Cohabitants may
make use of the ordinary rules and remedies of the
law, such as those
relating to property and contract, but no family-law consequences
flow automatically from their relationship.
They can invoke none of
the protective, adjustive and supportive measures available to
spouses.”
[2] The plaintiff’s action
against the defendant comprises three separate and distinct bases.
The cause of action in the first,
claim
A
, is based upon an alleged
tacit universal partnership brought into existence by the parties’
prolonged period of cohabitation.
The alternative contractual claim
for a breach of promise to marry was not persisted with and requires
no adjudication. The second
claim,
claim
B
, is a delictual action
for damages for breach of promise to marry. At the conclusion of the
defendant’s evidence, and prior
to argument, his counsel, Mr.
de la Harpe
,
conceded the merits of the claim. The only outstanding issue
hereanent is the quantification of the damages suffered by the
plaintiff.
The third claim,
claim
C
, for damages for an
alleged assault, was abandoned prior to the commencement of the trial
and it too falls by the wayside. The
summons commencing action was
issued by the Registrar in this Court.
[3] Several weeks thereafter, the
defendant instituted action against the plaintiff in the High Court
in Grahamstown. In his particulars
of claim he alleged that the
plaintiff was in unlawful occupation of premises,
to
wit
, the common home and he
sought her ejectment therefrom. His cause of action was premised upon
the provisions of the
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act
2
and, in addition, he claimed payment
of the sum of R11 000, 00 per month, calculated from 1 January 2008,
until the date the ejectment
sought, was effected. The two actions
were consolidated for purposes of trial and before me, Mr.
de
la Harpe
, expressly
abandoned the monetary component of this claim but persisted with the
claim for ejectment. It is not in issue that the
plaintiff has been
residing in the common home since 1999 with the children. For the
sake of convenience, I shall henceforth refer
to Ms.
Mncora
as the plaintiff, Mr.
Butters
as the defendant, and, where
appropriate, to them collectively, as the couple.
[4] The issues which fall for
adjudication are –
whether the plaintiff has
discharged the onus of establishing, upon a preponderance of
probabilities, the existence of a tacit
universal partnership
between her and the defendant;
the quantum of her damages for
breach of promise to marry; and
whether an order for ejectment of
the plaintiff is warranted.
Universal Partnership
[5] The plaintiff’s claim for
the existence of a tacit universal partnership between her and the
defendant is strenuously
resisted. He steadfastly maintains that his
assets, accumulated over time, are his own and the product of his
expertise, business
acumen and labour. In order to resolve the
factual issue the evidence must be analysed and evaluated in order to
determine whether
they had implicitly or by conduct, entered into a
universal partnership. It is common cause that the defendant is man
of affluence,
possessed of considerable assets. But, that was not
always the case. When he met the plaintiff, more than two decades ago
and she
became his minion, he was a technician, employed by the Post
Office, now Telkom, and living in a rented garden cottage on
residential
premises in Grahamstown. The plaintiff on the other hand,
then a young unmarried mother lived with her parents in New Brighton,
Port Elizabeth. The circumstances in which they met and their life
thereafter was recounted by the plaintiff in some detail and
what
follows is her story.
[6] The plaintiff is 45 years of age.
She attended school and matriculated in Port Elizabeth in 1984.
During 1987, she enrolled
at the Iqaqaqi College in Port Elizabeth to
pursue a course in office administration. During a vacation in 1998,
she began selling
hair products in order to generate an income and
visited Grahamstown where she met the defendant at a function in the
township.
This was a case of love at first sight. The relationship
took root and blossomed. The couple spent many weekends together,
either
in Grahamstown or in Port Elizabeth. The plaintiff was at that
stage still living with her parents. In time they became intimate
and
rented a room in a house in Swartkops Valley in Port Elizabeth where
the defendant would live with her every weekend when he
was in Port
Elizabeth. When he was not able to, she travelled to Grahamstown and
lived with him. In due course he moved from the
garden cottage to a
house which he shared with another person and the plaintiff would
reside with him on her visits to Grahamstown.
[7] The plaintiff continued her
education at the college and completed the course at the end of 1989.
During 1990, she fell pregnant
and a boy,
B
, was born on 7
January 1991. After
B’s
birth the plaintiff continued to
live with her parents but notwithstanding the employment enforced
separation, the relationship
grew stronger. Their living arrangements
continued as before for the next few years.
[8] Throughout this period the
defendant continued working at the Post Office but on his weekend
visits to Port Elizabeth, began
to moonlight as a home and car alarm
technician to supplement the family income. To ensure the success of
this venture the plaintiff
introduced the defendant to various
prospective clients and soon the alarm business burgeoned. During
1992, the couple discussed
the possibility of operating the business
on a full time basis. The plaintiff’s undisputed evidence was
that they agreed
that the business would be located in Grahamstown by
reason of the over saturation of the home alarm businesses in Port
Elizabeth.
The defendant duly resigned from the Post Office in June
1992 and opened a business, Hi Tech, in Grahamstown.
[9] Although the couple lived apart,
the separation was business enforced, but the relationship continued
unabated. As the business
grew in stature, the defendant built a home
in Overbaakens in Port Elizabeth and the plaintiff and
B
moved into the home together with
F
,
her daughter from a previous relationship. The defendant had long
been aware of her and loved and treated her as his own and it
was at
his insistence that
F
moved into the home at Overbaakens.
During 1994, and as
B
and
F
matured and were enrolled at school,
the plaintiff commenced employment at the Department of Education
where she worked for two
years. Although the defendant disputed that
he had asked the plaintiff to stop working, and devote herself full
time to the children,
I accept the plaintiff’s evidence that
she stopped working at the behest of the defendant. During the period
at Overbaakens,
the defendant provided the plaintiff with a motor
vehicle, a credit card, a petrol card, and provided all the household
necessaries.
[10] During 1998, the defendant
proposed to the plaintiff in private and presented her with an
engagement ring. Shortly thereafter
she once more fell pregnant and
in September 1998 the defendant arranged a party at the home where
he, amidst much fanfare and
merriment, publicly announced his
engagement to the plaintiff. Thereafter their lives continued as
before and they discussed marriage.
During the conversation the
plaintiff stated her preference for a white wedding, though not too
big. The defendant raised no objection
and although no fixed date was
mentioned it was understood that a wedding would ensue as a matter of
course, but that it would
wait until the business was sufficiently
established and on a sound financial footing.
[11] A second son,
J
,
was born on 7 January 1999. Owing to the growth of the family, the
defendant saw the need for a larger residence and built a new
family
home, common home. To assist in the upkeep of the home a domestic
worker was employed on a full time basis and the plaintiff’s
lifestyle became commensurate with the increased standard of living
generated by the profitability of the business. As time progressed
the family bonds grew stronger and the couple were for all intents
and purposes, a happily married couple. The plaintiff wanted
for
nothing. Her life was, as she described it
“
nice
and perfect”
.
In conformity with their increased station in life, they travelled
extensively.
[12] Family holidays, locally and
abroad, were undertaken for extended periods of time. There were
numerous holidays in Cape Town,
Johannesburg and Durban. The couple
holidayed for a long period in the Drankensberg and along the Wild
Coast. They journeyed to
Bali in Indonesia for an extended holiday
together with the defendant’s sister. Although no further
overseas travel was undertaken,
local holidays continued throughout
their cohabitation.
[13] During 2004, the family unit
increased by the arrival of
V
at the common home. She was the
defendant’s daughter and lived with her mother in Patterson.
Her existence had been divulged
to the plaintiff and
V
frequented the common home, and lived there over weekends. Actuated
by his desire that
V
too be accorded the benefit of a better
education, the defendant sought the plaintiff’s consent that
V
reside with them in the common home and attend a local school. The
plaintiff readily acquiescenced and
V
came to live with her.
V
assimilated herself into the family and lived with the plaintiff for
three years until she matriculated in 2007.
[14] Throughout the period of their
cohabitation prior to 2007, the defendant’s love and devotion
to the plaintiff and children
was unadulterated. He was the perfect
husband and father. During her convalescence, following a botched
operation in 2004, he,
in conformity with his consistent caring
attitude towards her, saw to the payment of her hospital bills and
stood by her throughout
her ordeal in hospital.
[15] During 2006, the first inkling
that all was not as it seemed manifested itself. Quite fortuitously
the plaintiff discovered
an insurance policy in the defendant’s
name wherein the named beneficiary was listed as one
Thandiswa
Mbewu
(
Thandiswa
). Angered at this discovery, the
plaintiff confronted the defendant who, however, remained deadpan and
silent. Notwithstanding
this confrontation, the relationship endured
and soon settled into the hitherto family routine.
[16] During 2007 however, the
plaintiff noticed that the defendant’s weekend visits, though
regular, were being curtailed.
Instead of arriving punctually on the
Friday, he would on occasions arrive on the Saturday and sometimes
the Sunday before returning
to Grahamstown the Monday.
Notwithstanding, the relationship continued as before, they continued
to share the same bed and the
family unit remained intact. This
semblance of a blissful, stable relationship between the couple was
soon to be shattered and
the manner in which the plaintiff unearthed
the defendant’s duplicity was entirely fortuitous.
[17] Unbeknown to the plaintiff, the
defendant had married
Thandiswa
during November 2007.
Notwithstanding the deception, he had conducted himself with thespian
aplomb. He continued to share the plaintiff’s
bed and his
behaviour towards her and the children remained unchanged. On the
morning of 1 January 2008, the plaintiff and the
children were, to
the knowledge of the defendant, scheduled to leave for Jeffrey’s
Bay where they were to spend the evening
and the next day at the
beach. Seizing the opportunity, the defendant decided to spend the
evening with his new bride in the common
home. This soiree however,
came to an abrupt end. During that evening and whilst in Jeffrey’s
Bay,
J
, became obstreperous and insisted on returning to the
common home. Their unexpected arrival exposed the defendant as a
philanderer.
The evening ended acrimoniously and cohabitation between
the plaintiff and the defendant ceased.
[18] The aforegoing exposition of the
life and times of the couple was narrated by the plaintiff in her
testimony in chief. Save
for certain aspects, to which I shall in due
course revert, her evidence was never challenged. The thrust of the
cross-examination
was directed at eliciting a concession from the
plaintiff that she played no meaningful role whatsoever in the
management, operation
or running of any of the defendant’s
business enterprises. The plaintiff readily conceded that save for
some trivial assistance
rendered to the defendant when he moonlighted
as an alarm technician, she played no role in the conduct of his
business ventures.
[19] During his testimony the
defendant, notwithstanding the fact that the plaintiff’s
evidence was never challenged, sought
to convey the impression that
the plaintiff’s idyllic account of their relationship was
exaggerated. Although it had been
put to the plaintiff that her
penchant for alcoholic beverages caused the breakdown of the
relationship between them, it became
obvious as the cross-examination
of the defendant continued, that the allegations of alcohol abuse
were contrived and designed
not only to denigrate the plaintiff, but
moreover to frustrate her claim to the relief sought. The defendant
was a particularly
unimpressive witness. He lied unashamedly and
there is more than sufficient reason for rejecting his evidence where
it conflicts
with that of the plaintiff. Three examples of his
complete disregard for the truth will suffice to show that no weight
whatsoever
can be attached to his evidence.
[20] I have earlier adverted to the
plaintiff’s discovery of a policy of life insurance wherein
Thandiswa
was the named beneficiary. During the initial part
of his cross-examination he stated that he met
Thandiswa
for
the first time during the end of 2007. In response to a question by
me, he said that he married her after a whirlwind romance.
The fact
of the matter is that in his amended plea, he admitted having married
her on 15 November 2007. That evidence was clearly
concocted as the
policy of insurance, circa 2006, attests to. Further questioning on
this issue merely added to his woes. He was
cross-examined on his
response in his plea, to the plaintiff’s allegations that she
had accompanied him on vacations. Therein
he had denied that she
accompanied him on holidays, save for one occasion to Johannesburg
and Cape Town.
[21] The falsity of those averments
soon surfaced, particularly when he was confronted with the fact that
the plaintiff’s
evidence, that they frequently went on holiday
together, was never challenged. Disingenuously, he sought refuge for
his lack of
candour in a bout of amnesia. Thirdly, his evidence that
the relationship between them soured during 2001 was clearly shown to
be a fabrication. The plaintiff’s evidence that up until 1
January 2008 they continued in an amorous stable relationship,
was
never challenged. He had great difficulty in explaining why he not
only continued visiting the common home, but maintained
intimacy with
the plaintiff. There are numerous other examples of his complete
disregard for the truth and the weight of the evidence
establishes
that the cause of the breakdown of the relationship between him and
the plaintiff was his illicit relationship with
and subsequent
marriage to
Thandiswa
.
[22] The issue which accordingly falls
for decision is whether, on the facts as outlined, an implied or
tacit universal partnership
existed between the couple. The legal
position is trite – a universal partnership can exist between
cohabitants if the requirements
for such a partnership have been met.
Those requirements were succinctly articulated by Mccreath J, in
Muhlmann v Muhlmann
3
as:-
“
. . . firstly,
that each of the partners brings something into the partnership, or
binds himself to bring something into it, whether
it be money, or his
labour or skill. The second essential is that the business should be
carried on for the joint benefit of both
parties. The third is that
the object should be to make profit. Finally, the contract between
the parties should be a legitimate
contract. (See
Rhodesia
Railways and Others v Commissioner of Taxes
1925
AD 438
at 465). The last requirement is, of course, common to all
contracts and is not therefore, strictly speaking, essential to the
definition of a partnership.”
[23] A useful starting point in
determining whether the first requirement has been satisfied is
Isaacs v Isaacs
4
where the learned judge, Searle J,
said the following
5
“
On these facts
the plaintiff asks the Court to infer a tacit universal partnership
in all their undertakings. A partnership can
be implied from the
facts, even though there is no express agreement of partnership -
vide
Fink v Fink and Another
(1945,
W.L.D. 226
at p. 228), and in my view it is the only reasonable
inference to draw from these facts when regarded as a whole. Both
parties
devoted their energy and skill over a number of years in
order to provide the necessaries of life and such a measure of
comfort
and security as could be obtained for the common welfare in
the home and the upbringing and education of their children. The
proceeds
of their energies were at all times pooled and devoted to
this common purpose and it was with this object that they bought the
land and built on it out of the profits derived from their work. To
hold, as contended on behalf of the defendant, that the intention
of
the plaintiff was to work for her 'husband' and to assist him to
accumulate for himself an asset, which he could dissipate at
his
pleasure, would be a most unreasonable inference to draw from the
facts and contrary to all the probabilities, more particularly
as
such would conflict with the recognised principles of the law of
their faith. Each party has to provide for their own maintenance
and
support in their old age and each party is liable to provide support
for any minor children who still require maintaining and
it is not
conceivable that they could ever have intended that defendant alone
should derive the benefit from their joint labours
over twenty-eight
years of association as man and wife. Accordingly I am of opinion
that plaintiff has established that there was
a tacit universal
partnership in the sense I have referred to in my judgment on the
application for absolution from the instance.
The next question for
decision is the proportion of the shares of each party. The plaintiff
claims that she is entitled to share
equally with the defendant,
whereas the defendant maintains that her contribution was a minor one
compared to his. It is clear
law that on dissolution each party gets
a proportionate share of the assets according to his or her
contribution, and it is only
when their respective contributions were
equal or it is impossible to say that one has contributed more than
the other that they
share equally -
vide
Fink v Fink
(1945,
W.L.D. 226).
Now it is obvious that as each of the parties devoted
their whole time to work, part of which, in so far as the plaintiff
was concerned,
consisted of carrying out the duties of a mother and
housewife, the defendant had more time to devote to the actual
money-making
side of their ventures and thus in a sense must have
contributed a greater proportion of the labour directly to the
production
of the profits. I do not think, however, that this is the
correct approach. Had the plaintiff devoted her whole time to the
strictly
commercial aspect of the ventures, doubtless greater gross
profits would have been produced. The object of the partnership was,
however, to provide for the household, and had plaintiff devoted her
time entirely to commerce, the cost of the household to the
partnership would be proportionately greater, as it would have had to
pay others to do the work done by the plaintiff. The result
would be
a decrease in the nett profits, amounting possibly even to a loss. In
the circumstances therefore, in my view, the plaintiff's
labours in
the home, in part, if not entirely, formed part of her contribution
to the partnership. If I am correct in this, then
clearly it is quite
impossible to hold that defendant contributed more than the plaintiff
and the parties are entitled to share
equally.”
[24]
Isaacs
has, over
the decades, consistently been followed and applied and is of equal
application to the facts in
casu
. Although the plaintiff
played no direct role in the growth and expansion of the business
per
se
, her contribution to the partnership was, in my view, not
inconsequential. The evidence establishes that the object of the
partnership
was to provide for the household. Although the plaintiff
worked for short periods during the couples’ cohabitation,
there
is no evidence to suggest that she applied her earnings for
herself. In the formative years of the business, the plaintiff lived
frugally and was content with the R1000, 00 weekly contribution made
by the defendant. She devoted all her time and energy in caring
for
the children, and, during weekends, for the defendant himself. As the
children grew up, her care for them was akin to full
time employment.
She not only ferried them to and from school but transported them to
their extra curricular activities.
[25] It must be recalled that during
the subsistence of her cohabitation the children, whom she was
required to care for and look
after, increased in number. Her
contribution in that sphere was immeasurable and the clear impression
gained from her testimony
is that she applied herself fully, not only
to the children’s well being, but the defendant’s, as
well. Her evidence
that she implemented a dietary regime for the
defendant for health reasons, given his weight gain, was never
challenged and provides
clear proof that her overriding concern was
the well being of the family unit. Some point was made during the
plaintiff’s
cross-examination that many, if not all, the
household chores were performed by the domestic help. The fact that
the plaintiff
had full time, weekday help is, in my view, entirely
irrelevant. Given her circumstances, in effect, a full time single
mother
to four children, she needed all the help she could get.
[26] Commercial reality dictated that
the business be opened in Grahamstown but the common home continued
to be in Port Elizabeth.
There was no guarantee that the business
would succeed. The plaintiff’s undisputed evidence was that the
choice of Grahamstown,
as the location of the business, was a joint
decision and the probabilities favour the plaintiff’s version
that the business
should be carried on for their joint benefit. The
object was clearly to make a profit. The acquisition of, firstly, the
home in
Overbaakens and thereafter the common home demonstrates that
the object of starting the business was to provide for their
livelihood
and comfort and the education of their children. The
enrolment of the children at St Georges, St Andrews and Parsons Hill
schools
respectively, bear testimony to the fact that the profit was
never intended to benefit the defendant alone. Although he eventually
purchased a home in Grahamstown, it was used only during the week
while he managed the business, weekends were routinely spent
with the
plaintiff and the children in Port Elizabeth. On those occasions they
shopped together, dined out, and, as recounted earlier,
holidayed
extensively, all of which was enjoyed on the profits generated by the
business.
[27] In the final analysis I am
satisfied that the plaintiff’s contribution to the home formed
part of her contribution to
the partnership. The second and third
essentials have likewise been established and contract was clearly
legitimate. The plaintiff
is accordingly entitled to some relief. The
question however, is whether, as claimed, she is entitled to payment
of 50% of the
nett value of the defendant’s estate as at the
date of their separation
viz
, 1 January 2008. During argument
before me Mr.
Mullins
persisted with the claim for 50% whilst
Mr.
de la Harpe
strenuously argued that the claim be
dismissed. It is not in dispute that the plaintiff played no part,
whatsoever, in the day
to day running of the business. The success of
the business 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. The success of the business, contextually,
is thus in no small measure due to the role played by the
plaintiff
in single-handedly taking care of the defendant and the family.
[28] Notwithstanding the aforegoing
and the longevity of the couple’s cohabitation however, would
it be equitable to order
that half of his estate as at 1 January 2008
devolve upon the plaintiff? I think not. 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.
[29] Although Searle J, found that the
parties in
Isaacs
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
6
Ramsbottom J, found that on the facts
the parties were entitled to share equally in the division of the
estate.
[30] The facts in
casu
are however, wholly dissimilar to
Isaacs
and
Fink
.
That she is entitled to a percentage of the partnership assets as at
1 January 2008 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
7
,
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, in 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 partnership, it would follow that the
rights
of the partners should be ascertained at the time of 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
calculation 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.”
[31] 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
1 January 2008.
The Quantum of damages for
breach of promise to marry
[32] As mentioned hereinbefore,
counsel for the defendant conceded the merits of the plaintiff’s
delictual claim for damages.
The claim was premised on several
allegations. The couple had been together for a period of nineteen
years, had been engaged for
nine years; the plaintiff had the
legitimate expectation that they would in due course marry, and the
acute embarrassment the sudden
revelation of the defendant’s
marriage had caused her. Notwithstanding the concession made, it is
apposite, in determining
the quantum of the plaintiff’s
damages, to refer to the remarks of Harms D.P, in
Van
Jaarsevld v Bridges
8
where the learned judge advocated the
modern approach to actions based upon a breach of promise to marry.
The learned judge stated
9
“
[19]
A breach of promise can only lead to sentimental damages if the
breach was wrongful in the delictual sense. This means that
the fact
that the breach of contract itself was wrongful and without just
cause does not mean that it was wrongful in the delictual
sense, ie
that it was injurious.
Ndamase
v University College of Fort Hare and Another 1966 (4) SA 137 (E) at
139G - 140C. In what follows I am paraphrasing the
words of
Smalberger JA in Delange v Costa 1989 (2) SA 857 (A) at 861 - 862.
Logically
one should commence by enquiring whether there has been a wrongful
overt act. A wrongful act, in relation to a verbal
or written
communication, would be one of an offensive or insulting nature. In
determining whether or not the act complained of
is wrongful the
court applies the criterion of reasonableness. This is an objective
test. It requires the conduct complained of
to be tested against the
prevailing norms of society. To address words to another which might
wound the self-esteem of the addressee,
but which are not,
objectively determined, insulting (and therefore wrongful), cannot
give rise to an action for
injuria.
Importantly,
the character of the act cannot alter because it is subjectively
perceived to be injurious by the person affected thereby.”
The learned judge found that on the
facts the injury or contumacy was minimal and should have been
discounted. Although neither
counsel referred me to the
aforementioned decision it is unnecessary, in view of the concession
made, to consider the matter any
further. The plaintiff’s claim
has been conceded and no useful purpose can be gained by visiting the
merits of this claim.
In my judgment, the plaintiff’s
humiliation can adequately be assuaged by the defendant’s offer
of R25 000, 00 for
the contumacy suffered by her.
The Eviction Application
[33] The plaintiff’s defence to
the eviction application was premised on the existence of a universal
partnership. Having
found in favour of the plaintiff on this issue,
her continued occupation of the premises can hardly be construed as
unlawful and
the defendant’s claim for eviction cannot be
sustained.
[34] In the result the following
orders will issue:-
Case No 881/2008
It is declared that a universal
partnership existed between the plaintiff and the defendant of all
assets acquired by them during
the period 1998 to 15 November 2007.
The universal partnership is
dissolved with effect from 15 November 2007.
The parties are to appoint a
liquidator and receiver with authority to realise the universal
partnership assets, to liquidate
same, if necessary, to prepare a
final account and to pay to the plaintiff 30% of the nett proceeds
thereof, the remainder to
be paid to the defendant.
In the event that the parties are
unable to reach consensus on the appointment of a liquidator or
receiver the parties are directed
to approach the court which shall,
after hearing the parties, appoint a liquidator and receiver
Interest on the sum so determined
at the legal rate calculated as from 15 November 2007 to date of
payment thereof.
The defendant is ordered to pay
the plaintiff damages in the sum of R25 000. 00.
The defendant is ordered to pay
the plaintiff’s costs of suit.
Case No: 3055/2010
The defendant’s action is
dismissed with costs.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
On behalf of the Plaintiff: Adv N.
Mullins
Instructed by Lulama, Prince &
Associates
6 Du Toit Street
North End
Port Elizabeth
Tel: (041) 484 1004
Ref: LP0175
On behalf of the Defendant: Adv De la
Harpe
Instructed by Wheeldon Rushmere and
Cole
C/o Liston, Brewis & Company
35 Albany Road
Port Elizabeth
Tel: (041) 585 3363
Ref: Mr S. Brewis
1
Law
of Marriage, Volume I at p 274
2
Act
No 19 of 1998
3
1981
(4) SA 632
(W) at 634c
4
1949
(1) SA 952
(CPD)
5
At
p960-962
6
1945
TPD 226
(TPD)
7
(CAPP04105)
[2005] BWCA 18
(30 January 2008)
8
2010
(4) SA 558
SCA
9
At
para [19]