About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2012
>>
[2012] ZAECPEHC 80
|
|
Smallberger v Stols (1112/2012) [2012] ZAECPEHC 80 (13 November 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION - PORT
ELIZABETH)
CASE NO: 1112/2012
DATE HEARD: 30/08/2012
DATE DELIVERED:
13/11/2012
In the matter between
RENE᷇ SMALBERGER
............................................................
PLAINTIFF/EXCIPIENT
and
GABRIEL JACOBUS STOLS
..........................................
DEFENDANT/RESPONDENT
JUDGMENT
ROBERSON J:-
[1] In this matter the plaintiff has
excepted to a portion of the defendant’s counterclaim. The
plaintiff and the defendant
are husband and wife. The plaintiff has
instituted an action in which she claims a decree of divorce, an
order that she be awarded
primary residence of the minor child born
of the marriage, subject to certain defined contact with the
defendant, and maintenance
for the minor child. The defendant has
counterclaimed for a decree of divorce, alleging different grounds
for the irretrievable
breakdown of the marriage, slightly different
terms of contact with the minor child, a declaration that a
partnership existed between
the plaintiff and the defendant in the
proportion of 70%/30% respectively, an order dissolving the
partnership as at the date of
issue of summons, and the appointment
of a liquidator. It is not in dispute on the pleadings that the
parties were married out
of community of property with the exclusion
of the accrual system.
[2] The portion of the defendant’s
counterclaim to which the plaintiff has excepted relates to the claim
that a partnership
between the plaintiff and the defendant existed.
The defendant’s allegations relating to the alleged partnership
were as
follows:
During the subsistence of their
marriage the parties entered into a tacit universal partnership by
virtue of the following:
9.1 The plaintiff at all times
subsequent to the marriage had a far superior earning capacity and
income to that of the defendant.
9.2 Notwithstanding the aforegoing,
defendant contributed all of his income from whatever source to the
payment of household
and family expenditure.
9.3 The plaintiff utilised her
excess income and her earning capacity to accumulate assets.
9.4 The defendant sacrificed his own
career within the church by passing up employment opportunities for
the benefit of plaintiff’s
career and so as to contribute
significantly to the needs of the family in their home environment.
The parties contributed to the said
partnership their earnings and thereafter the defendant contributed
30% in respect of labour,
services and skill to the partnership and
the plaintiff 70%, including but not limited to the following:
10.1 Direct contributions from
earnings;
10.2 Defendant did more than
expected of an ordinary husband married to a working wife,
including but not limited to:
10.2.1 Looking after the minor child
when the plaintiff was away on business, sometimes for up to a week;
and
10.2.2 Contributing to the
running of the household to enable the plaintiff to
concentrate on her work; and
10.2.3 Foregoing career
opportunities so as to be able to support the plaintiff at
home.
No express agreement as to the
division of the profits of the partnership was arrived at between
the parties, but defendant avers
that in the premises, it was
tacitly agreed that the profits would be divided in the share of 70%
to the plaintiff and 30% to
the defendant.
It was further a tacit term of the
said partnership that upon the parties’ marital relationship
having irretrievably broken
down, the partnership would be
terminated.
The plaintiff does not acknowledge
the existence of the partnership.
[3] The plaintiff, having first given
the defendant notice to remove the cause of the exception, excepted
in the following terms:
Ad paragraphs 9, 10, 11, 12 and 13
thereof
:
In these paragraphs defendant
alleges and claims a tacit universal partnership, however evidence
in support of a universal partnership
as described and alleged in
the defendant’s claim in reconvention would contradict the
terms of the antenuptial contract
concluded between the parties and
admitted by the defendant in his claim in reconvention as being out
of community of property
with the exclusion of the accrual system.
Such evidence in support of a
universal partnership would accordingly be inadmissible on the
basis that it would offend against
the parol evidence or
integration rule, alternatively on the basis that such an agreement
of universal partnership would amount
to an invalid amendment of
the parties’ antenuptial contract.
In the light of the above,
defendant’s claim in reconvention is vague and embarrassing
and lacks the necessary averments
to sustain the claims as set out
in defendant’s claim in reconvention.
Accordingly the plaintiff is
prejudiced in pleading to these paragraphs.
[4] At the hearing of the exception,
counsel for the plaintiff limited the exception to the ground that
the portion of the counterclaim
excepted to, lacked the necessary
averments to sustain the claim.
[5] It was submitted on behalf of the
defendant that the exception as framed was to the effect that
evidence in support of the existence
of a universal partnership would
be inadmissible. This was not a ground for an exception and the
exception should accordingly be
dismissed for this reason alone. I do
not agree with this submission. Exceptions have been upheld where
evidence to support a defence
would be inadmissible. See for example
Gerber v Naude
1971 (3) SA 55
(TPD) and
Plascon-Evans
Paints (Transvaal) Ltd v Virginia Glass Works (Pty) Ltd and Others
1983 (1) SA 465
(OPD). I therefore am
of the view that I may deal with the exception as one taken on the
ground that the counterclaim lacks averments
to sustain the claim.
[6] In
Butters
v Mncora
2012 (4) SA 1
(SCA)
1
at paragraph [14]
,
Brand JA discussed the two
types of universal partnership, as follows:
“
It
appears to be uncontroversial that, apart from particular
partnerships entered into for the purpose of a particular enterprise,
Roman and Roman Dutch law also recognised universal partnerships.
Within the latter category, a distinction was drawn between two
kinds. The first was the
societas
universorum bonorum
– also referred to as the
societas
omnium bonorum
– by which the parties agree to put in common all their
property present and future. The second type consisted of the
societas
universorum quae ex quaestu veniunt
where the parties agree that all they may acquire during the
existence of the partnership from every kind of commercial
undertaking,
shall be partnership property.”
[7] The matrimonial property regime
chosen by the parties in this matter has the effect that their
estates remain separate, and
they do not share in each other’s
accrual.
2
The partnership alleged by the
defendant appears to be a
societas
universorum bonorum
.
[8] In
Fink
v Fink and Another
1945 WLD
226
and
Mühlman v
Mühlman
1984 (3) SA
102
(AD), tacit partnerships were found to have come into existence
between spouses married out of community of property. In both cases,
the partnership concerned a commercial enterprise to which both
parties had contributed. In the present case the defendant does
not
allege such an enterprise. The subject matter of the partnership in
the present case appears to be the marriage itself, and
the alleged
contributions of the parties are those which can be expected to be
made in a marriage, as a result of the way the parties
choose to run
the matrimonial household. In that case the distribution of the
“profits” of the alleged partnership
would be contrary to
the chosen matrimonial property regime, and would, as submitted,
amount to an invalid amendment of the antenuptial
contract.
Effectively some form of accrual sharing would be introduced, when it
had been expressly excluded. I therefore do not
agree with the
submission on behalf of the defendant that the matrimonial property
regime and the alleged universal partnership
could co-exist.
[9] It is so, as was stated in
Butters
v Mncora
(
supra
) at paragraph [18], that universal
partnerships of all property which extend beyond commercial
undertakings still form part of
our law, and that such partnerships
may be tacitly concluded. However, in my view, that theoretical legal
position does not mean
that spouses married in accordance with a
specific matrimonial property regime can validly enter into an
agreement which contradicts
the terms of such regime.
[10] In
Butters v Mncora
the
submission was made that the respondent had done no more than could
be expected of a cohabitee, relying on what was said in
Mühlman
at 124D-E as follows:
“
It
is, of course, well known …… that many wives work in
the businesses of their husbands without expecting or receiving
any
remuneration for their services. From this it follows that, unless a
wife has rendered services manifestly surpassing those
ordinarily
expected of a wife in her situation, a Court will not easily be
persuaded to infer a tacit agreement of partnership
between the
spouses.”
Brand JA dealt with that submission at
paragraph [29] as follows:
“
I
do not believe, however, that the statement relied upon can be
transposed, without any qualification, on a relationship between
cohabitees. The relationship between spouses is governed by
well-established standards, both legally and socially imposed. We
therefore have a good idea of what can ‘ordinarily be expected
of a wife in her situation’. Relationships between cohabitees,
on the other hand, are not so governed. It is therefore not possible
to establish a norm.”
This distinction between cohabitees
and spouses is in my view significant in considering the
contributions the parties in the present
matter allegedly made, and
in deciding whether or not the alleged partnership could co-exist
with the parties’ chosen matrimonial
regime.
[11] Counsel for the defendant
submitted that the distinction between the two types of universal
partnerships was artificial in
the light of what was said in
Ponelat
v Schrepfer
2012 (1) SA 206
(SCA) at paragraph [22]:
“
A
universal partnership exists if the necessary requirements for its
existence are met, and this is regardless of whether the parties
are
married, engaged or cohabiting.”
However in that case the parties were
not spouses but cohabitees, and the above extract must be seen in the
context of what was
said earlier at paragraph [22], as follows:
“
It
is apparent from the case law that a universal partnership can exist
in a marriage, as was the case in
Mühlman
v Mühlman
supra and
Fink
v Fink and Another
1945 WLD 226.
It does not follow then that a universal partnership
cannot exist between parties who are engaged to be married.”
Seen in this context, the passage
relied upon by the defendant is not in my view blanket authority for
the existence of a universal
partnership in a marriage, regardless of
the chosen matrimonial property regime. The reference to
Mühlman
and
Fink
is in any event a reference to universal partnerships
involving a commercial enterprise.
[12] The matter of
JW v CW
2012
(2) SA 529
(NCK), a divorce action, dealt with a similar situation.
The parties were married out of community of property with the
exclusion
of the accrual system. The defendant counterclaimed for a
declaratory order that a universal partnership existed between the
parties,
and other consequential relief. The issue of a universal
partnership could not be dealt with by way of exception, as there was
no allegation in the pleadings that an antenuptial contract had been
concluded and such contract did not form part of the pleadings.
The
issue was however dealt with separately. At paragraph [25], Olivier J
said the following:
“
The
establishment of a partnership like that alleged by the defendant
would have defeated the clear purpose of the terms agreed
upon in
clauses 1 and 2 of the antenuptial contract. It would have
substituted the matrimonial property regime agreed upon in the
antenuptial contract with a regime which would have the opposite
effect.
The
partnership envisaged in the counterclaim would not have been a legal
entity separate from the matrimonial property regime which
was
supposed to apply between the parties.
”
(My emphasis.)
With respect, this passage is directly
applicable to the present case.
[13] After referring to the
requirement of a Court order for the revocation or amendment of an
antenuptial contract
3
,
Olivier J concluded as follows, at paragraph [36]:
“
In
my view evidence of an invalid revocation or amendment of the terms
of the antenuptial contract would be inadmissible, on the
basis of it
being irrelevant as a result of the doctrine that an antenuptial
contract cannot be revoked or amended in this manner.”
I am in respectful agreement with this
conclusion.
[14] In the result, the exception
should succeed. Evidence in support of the defendant’s
counterclaim in respect of the universal
partnership would be
inadmissible and that portion of the counterclaim therefore lacks the
necessary averments to sustain the claim.
[15] The following order will issue:
[15.1] The exception is upheld.
[15.2 Paragraphs 9, 10, 11, 12 and 13
of the defendant’s counterclaim are struck out.
[15.3] The defendant is to pay the
costs of the exception.
______________
J M ROBERSON
JUDGE OF THE HIGH COURT
Appearances:
For the Plaintiff/Excipient: Adv P
Scott, instructed by Kaplan Blumberg Attorneys, Port Elizabeth
For the Defendant/Respondent: Adv J
Nepgen, instructed by Goldberg & De Villiers Attorneys, Port
Elizabeth
:
1
This
case concerned cohabitees
2
Boberg’s
Law of Persons and the Family second edition 196
3
There
was no allegation in the counterclaim in the present matter that a
Court order had been obtained, or that there were grounds
for such
an order.