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[2012] ZASCA 29
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Butters v Mncora (181/2011) [2012] ZASCA 29; 2012 (4) SA 1 (SCA); [2012] 2 All SA 485 (SCA) (28 March 2012)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 181/2011
In the
matter between:
ANDREW
KINLOCH BUTTERS
…...........................................................
APPELLANT
v
NOMSA VIRGINIA MNCORA
….............................................................
RESPONDENT
Neutral citation:
Butters v Mncora
(181/2011)
[2012]
ZASCA 29
(28 March 2012)
Coram:
Brand, Heher, Cachalia, Mhlantla
et
Tshiqi JJA
Heard:
8 March 2012
Delivered:
28 March 2012
Summary: Unmarried couple living together as husband and wife for
almost 20 years – claim based on tacit universal partnership
–
whether established.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
On appeal from Eastern Cape High Court, Port
Elizabeth
(Chetty J sitting as court of first instance):
The appeal is dismissed with costs, including the costs of two
counsel.
________________________________________________________________
JUDGMENT
________________________________________________________________
BRAND JA
(MHLANTLA and TSHIQI JJA CONCURRING)
:
[1] I find it convenient to refer to the parties as they were cited
in the court a quo. Hence, I shall refer to the appellant,
Mr
Butters, as ‘the defendant’ and to the respondent, Ms
Mncora, as ‘the plaintiff’. For nearly 20 years
the
parties lived together as husband and wife. But they were not
married. Even though they were engaged to be wed for almost ten
years, this never happened. Eventually the relationship came to an
end on New Years day 2008. By that time the defendant was by
all
accounts a wealthy man while the plaintiff owned no assets worthy of
mention.
[2] The plaintiff then instituted action against the defendant in the
court a quo, claiming half of the defendant’s assets.
She
founded her claim on two alternative grounds. First, on the basis
that a tacit universal partnership existed between the parties
in
which they held equal shares. Alternatively, she claimed contractual
damages arising from the defendant’s breach of promise
to marry
her, calculated on the basis that the intended marriage would be in
community of property. During the course of the proceedings
in the
court a quo (before Chetty J), the plaintiff, however, abandoned her
alternative claim for contractual damages. Other claims
between the
parties against each other were also abandoned or resolved. All that
remained at the end of the proceedings in the
court a quo were the
plaintiff’s claims based on the existence of a universal
partnership and her delictual claim for damages
resulting from the
defendant’s breach of promise to marry her.
[3] With regard to the first claim, Chetty J decided that a tacit
universal partnership did in fact exist between the parties.
He then
determined the plaintiff’s share in the partnership at 30 per
cent and awarded her an amount equal to that percentage
of the
defendant’s net asset value as at the date when the partnership
came to an end. On the plaintiff’s second claim
Chetty J
awarded her delictual damages for breach of promise in an amount of
R25 000. The defendant’s appeal, with the
leave of the
court a quo, is confined to the judgment on the plaintiff’s
first claim. Moreover it is directed only against
the finding that a
tacit universal partnership existed between the parties. No issue is
therefore taken with the percentage of
the defendant’s estate
awarded to the plaintiff. The only question for determination on
appeal therefore turns on the existence
of a universal partnership
between the parties. This question is to be considered in the light
of the background facts which, in
turn, are to be distilled from the
evidence led at the trial.
[4] The only two witnesses in the court a quo were the parties
themselves. In so far as their versions were sometimes conflicting,
the court a quo decided, on the basis of its credibility findings, to
accept the plaintiff’s account. On appeal the defendant’s
counsel conceded, rightly in my view, that these credibility findings
cannot be faulted. On the record the defendant came across
as a
particularly bad witness and the adverse comments of the court a quo
appeared to be fully justified. What follows therefore
derives mainly
from the account of the plaintiff. The defendant’s version is
only relied upon where it stood uncontroverted.
[5] The plaintiff was born in 1964. After she matriculated, she
enrolled for a two year course in business administration. She
met
the defendant during 1988 when she was 24 and he was 27. At the time
she lived with her parents in Port Elizabeth while he
lived in
Grahamstown where he worked as a technician for the post office,
which later became Telkom. He stayed in a garden flat
at the back of
someone’s house. The parties visited each other regularly over
weekends, either in Port Elizabeth or Grahamstown.
In time they
became intimate and a child was born from their relationship in
January 1991. While the defendant continued to work
at the post
office he started to install alarm systems in houses and cars, in his
spare time, for extra income. During the week
he did so in
Grahamstown, after hours, and over weekends in Port Elizabeth where
the plaintiff assisted him, so she testified,
by ‘giving him
some stuff and wires that he wanted’ and also by introducing
him to prospective clients.
[6] In June 1992 the defendant resigned from the post office and
started a security business under the name Hitech. Though the
plaintiff continued to reside in Port Elizabeth, the parties
discussed the matter and decided that he should establish the
business
in Grahamstown where there was less competition. As the
business grew, the defendant built a house in Port Elizabeth where
the
plaintiff moved in together with their son and her daughter from
a previous relationship, whom the defendant maintained and treated
as
his own. During 1994 the plaintiff started working as a secretary
with the Department of Education at a salary of R2 000
per
month, but she stopped doing so after two years because, so she said,
the plaintiff wanted her to stay at home with the children.
[7] During 1998 the defendant proposed to the plaintiff and gave her
an engagement ring whereafter he announced their engagement
publicly.
On 7 January 1999 the plaintiff gave birth to their second son. In
2004 the defendant’s daughter from a previous
relationship also
took up residence with them, so as to enable her to receive a better
education in Port Elizabeth. She stayed
for three years until she
matriculated in 2007. The defendant’s business continued to
grow and their lifestyle improved correspondingly.
They moved into a
house with four bedrooms and a swimming-pool; they employed a
full-time domestic worker; expensive family holidays
were undertaken;
and the children went to expensive private schools. In short, the
defendant in time became a very generous provider
while the plaintiff
took responsibility for raising the children and maintaining their
common home, which the defendant visited
over weekends.
[8] Eventually the defendant gathered many assets. The ‘common
home’ and all other immovable properties so acquired
were
registered in his name. Yet, the plaintiff’s understanding was,
so she testified, that ‘everything . . . was for
both of us’;
that ‘we were sharing everything’; and that ‘no-one
was saying that one is mine and the other
one is [yours]’. The
defendant’s intransigent attitude, on the other hand, remained
throughout his testimony that whatever
he acquired was his and his
alone.
[9] During cross-examination the plaintiff conceded that she had
virtually nothing to do with the Hitech business after it had
been
established in Grahamstown and that she in fact never entered the
premises of this business. Her contention, however, remained
that
while she made no direct contribution to the defendant’s
business after he resigned from the post office, she supported
him,
cared for him and the children and maintained their common home. The
defendant’s counter-position was that the plaintiff
played no
part in his business life; that he was the only one who earned any
income while she, as he put it, at best brought up
the children and
paid the household expenses with money provided by him.
[10] Cracks started appearing in the relationship in 2006 and from
2007 changes in the defendant’s behaviour occurred in
that, for
example, he started spending less time with his family in Port
Elizabeth. Ultimately matters came to a head on the evening
of New
Year’s day 2008. The plaintiff and the children, who were to
stay over in Jeffrey’s Bay for the night, unexpectedly
came
home. There they found the defendant with another woman, Ms Mbewu.
The evening ended acrimoniously and the relationship between
the
parties came to an abrupt end. It then for the first time came to the
plaintiff’s notice that the defendant had married
Ms Mbewu on
15 November 2007. The termination of the relationship left the
plaintiff unemployed and without any personal income
at the age of
44.
[11] I now turn to the relevant legal principles. As rightly pointed
out by June Sinclair (assisted by Jaqueline Heaton),
The Law of
Marriage
Vol 1 274, the general rule of our law is that
cohabitation does not give rise to special legal consequences. More
particularly,
the supportive and protective measures established by
family law are generally not available to those who remain unmarried,
despite
their cohabitation, even for a lengthy period (see eg
Volks
NO v Robinson
[2005] ZACC 2
;
2005 (5) BCLR 446
(CC)). Yet a cohabitee can invoke
one or more of the remedies available in private law, provided, of
course, that he or she can
establish the requirements for that
remedy. What the plaintiff sought to rely on in this case was a
remedy derived from the law
of partnership. Hence she had to
establish that she and the defendant were not only living together as
husband and wife, but that
they were partners. As to the essential
elements of a partnership our courts have over the years accepted the
formulation by Pothier
(R J Pothier
A Treatise on the Law of
Partnership
(Tudor’s Translation 1.3.8)) as a correct
statement of our law (see eg
Bester v Van Niekerk
1960 (2) SA
779
(A) at 783H-784A;
Mühlmann v Mühlmann
1981 (4)
SA 632
(W) at 634C-F;
Pezzutto v Dreyer
[1992] ZASCA 46
;
1992 (3) SA 379
(A) at
390A-C). The three essentials are, firstly, that each of the parties
brings something into the partnership or bind themselves
to bring
something into it, whether it be money or labour or skill. The second
element is that the partnership business should
be carried on for the
joint benefit of both parties. The third is that the object should be
to make a profit. A fourth element
proposed by Pothier, namely, that
the partnership contract should be legitimate, has been discounted by
our courts for being common
to all contracts (see eg
Bester v Van
Niekerk supra
at 784A).
[12] Referring to these three elements, the defendant’s first
contention is that the plaintiff had failed to establish that
she had
contributed anything to the alleged partnership. His argument in
support of this contention departed from the premise that
the
partnership business contemplated in the second element must pertain
to a commercial undertaking. The plaintiff’s efforts,
so the
argument went, were confined to the common home and the children.
Though the value of these efforts should not be underestimated,
he
argued, the fact remains that the plaintiff made no contribution to
the commercial undertaking of the Hitech business which
was
exclusively undertaken by the defendant. In consequence, so the
argument concluded, the plaintiff had failed to meet Pothier’s
first requirement for a partnership.
[13] As authority for the proposition that a partnership, including a
universal partnership, must consist of some commercial undertaking,
the defendant relied primarily on
Isaacs v Isaacs
1949 (1) SA
952
(C) which also found particular favour with the court a quo. It
appears to me that
Isaacs
(at 954-956) does indeed lend
support to the defendant’s argument. But with the benefit of
historical research, first published
in 1980 (see J J Henning ‘Die
Leeuevennootskap: Aspekte van deelname in wins en verlies deur
vennote’ 1980
Modern Business Law
147) and the even more
recently introduced 17th century Roman Dutch authority of
Felicius-Boxelius
Tractatus de Societate
(translated by J J
Henning, H A Wessels & J H de Bruyn
Perspectives on and a
Selection from Felicius-Boxelius Tractatus de Societate
a
treatise on the law of partnership (2006)) it can now be said with
some confidence that
Isaacs
was based on a faulty premise. An
exposure of the fault line requires some historical perspective.
[14] 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. Earlier South
African authors expressed the view that universal partnerships of the
first kind,
ie those including all property, were not allowed in
Holland, save between spouses and perhaps in the case of putative
marriages
(see eg De Wet & Yeats
Kontrakte- en Handelsreg
3
ed (1964) 565 and Brian Bamford
The Law of Partnership and
Voluntary Association in South Africa
3 ed (1982) 19). This was
accepted by the courts as good authority (see eg
Isaacs supra
at
955;
V
(also known as L) v De Wet NO
1953 (1) SA 612
(O) at 614B-F). Moreover, the perception was that even where a
partnership of all property was allowed, it required an express
agreement and could therefore not be brought about tacitly. (See eg
Annabhay v Ramlall
1960 (3) SA 802
(D) at 805E.)
[15] The Roman Dutch authorities relied upon for these propositions
were primarily De Groot
Inleidinge
3.21.3. and Voet
Commentarius ad Pandectas
17.2.4. What the historical research
published in 1980 revealed, however, was that De Groot and Voet were
contradicted by others,
such as Pothier op cit 7.2.79-81 and Van
Leeuwen
Rooms-Hollandsch Recht
4.23.1-2, who dealt with
universal partnerships of all property at some length as being usual
and valid in Roman Dutch law (see
J J Henning
Law of Partnership
(2010) 24-27 and the authorities there cited). Most explicit in
this regard appears to be Felicius-Boxelius
supra
(10.15) who
stated the position as follows:
‘
There
are some jurists who maintain that a
societas
omnium bonorum
cannot
be entered into tacitly . . . but that . . . for all the assets to be
brought into the partnership it is necessary that the
societas
omnium bonorum
be
entered into expressly. [B]ut there are other jurists who hold the
contrary view: that a
societas
omnium bonorum
may
surely be entered into tacitly by performing an act of partnership,
because it is that type of contract which can be entered
into by
consensus alone and the validity of tacit and express partnerships is
the same.’
[16] With regard to the requirements for a universal partnership of
all property between cohabitees, we were invited on behalf
of the
plaintiff to accept the following statement by Felicius-Boxelius
(10.17) (referred to by J J Henning
Law of Partnership op cit
28)
as part of our law:
‘
I
would like to add that for this type of contract to be presumed there
are three interlinked prerequisites; namely cohabitation,
sharing of
profits and freedom of accounting to each other.’
[17] I believe we must decline the invitation. The requirements for a
partnership as formulated by Pothier had become a well-established
part of our law. Those requirements have served us well. They have
been applied by our courts to universal partnerships in general
and
universal partnerships between cohabitees in particular. I therefore
cannot see the necessity for the formulation of special
requirements
for the latter category. This is also borne out by the fact that
Pothier himself did not find his formulation of the
requirements
incompatible with the concept of universal partnerships of all
property which he discussed in some detail.
[18] In this light our courts appear to be supported by good
authority when they held, either expressly or by clear implication
that:
(a) Universal partnerships of all property which extend beyond
commercial undertakings were part of Roman Dutch law and still form
part of our law.
(b) A universal partnership of all property does not require an
express agreement. Like any other contract it can also come into
existence by tacit agreement, that is by an agreement derived from
the conduct of the parties.
(c) The requirements for a universal partnership of all property,
including universal partnerships between cohabitees, are the
same as
those formulated by Pothier for partnerships in general.
(d) Where the conduct of the parties is capable of more than one
inference, the test for when a tacit universal partnership can
be
held to exist is whether it is more probable than not that a tacit
agreement had been reached.
(See eg
Ally v Dinath
1984 (2) SA 451
(T) at 453F-455A;
Mühlmann v Mühlmann
1981 (4) SA 632
(W) at 634A-B;
Mühlmann v Mühlmann
1984 (3) SA 102
(A) at 109C-E;
Kritzinger v Kritzinger
1989 (1) SA 67
(A) at 77A;
Sepheri
v Scanlan
2008 (1) SA 322
(C) at 338A-F;
Volks NO v Robinson
2005 (5) BCLR 44
(CC) para 125;
Ponelat v Schrepfer
2012
(1) SA 206
(SCA) paras 19-22; J J Henning
Law of Partnership
(2010) 20-29; 19
Lawsa
2 ed para 257.)
[19] Once it is accepted that a partnership enterprise may extend
beyond commercial undertakings, logic dictates, in my view, that
the
contribution of both parties need not be confined to a profit making
entity. The point is well illustrated, I think, by the
very facts of
this case. It can be accepted that the plaintiff’s contribution
to the commercial undertaking conducted by
the defendant was
insignificant. Yet she spent all her time, effort and energy in
promoting the interests of both parties in their
communal enterprise
by maintaining their common home and raising their children. On the
premise that the partnership enterprise
between them could notionally
include both the commercial undertaking and the non-profit making
part of their family life, for
which the plaintiff took
responsibility, her contribution to that notional partnership
enterprise can hardly be denied.
[20] This brings me to the defendant’s further contention, that
the plaintiff had failed to satisfy Pothier’s second
element
which requires that the partnership enterprise must be carried on for
the joint benefit of both parties. His first argument
in support of
this contention was that, on the plaintiff’s own version, the
parties never discussed the issue and that the
best she could do was
to rely on her own understanding that ‘we were sharing
everything’. The argument is correct as
far as it goes. In
short, there was never an express partnership agreement. Yet the
question remains whether the plaintiff’s
impression as to the
core of their relationship is borne out by the conduct of the
parties. Incidentally, it was never suggested
to the plaintiff in
cross-examination that her impression was either mistaken or
unfounded. In fact, the focus of the cross-examination
was confined
to persuading the plaintiff that she made no contribution to the
Hitech business, which she readily accepted.
[21] During argument in this court counsel for the defendant conceded
that if both parties had earned an income which they then
shared, the
plaintiff would have gone a long way in meeting the second
requirement. In that event, so the defendant’s counsel
conceded, it would not matter if the plaintiff’s earnings were
far less than the defendant’s and that her financial
contribution was therefore quite modest when compared to his. But, so
counsel argued, those are not the facts of this case. In
this case
the defendant earned virtually all the income. Absent any agreement
to the contrary, so the argument went, the default
position, that the
defendant retains everything he acquired from his own income, must
therefore prevail.
[22] As I see it, this argument harks back to the model of a
partnership confined to a commercial enterprise. Taken to its logical
conclusion, it would mean that even a negligible monetary
contribution would outweigh an invaluable non-financial contribution
to the family life of the parties. In this light I must admit some
sense of relief that, freed from the restraints of regarding
universal partnerships as being confined to commercial enterprises,
we are now able to evaluate the contribution of those in the
position
of the plaintiff in its proper perspective. This also accords with a
greater awareness in modern society of the value
of the contribution
of those who are prepared to sacrifice the satisfaction of pursuing
their own careers, in the best interests
of their families.
[23] The plaintiff’s case is not that she and the defendant had
entered into a commercial partnership which was confined
to the
Hitech business. Her case is that they had entered into a partnership
which encompassed both their family life and the business
conducted
by the defendant. In view of what I have said earlier, I have no
conceptual difficulty with a partnership agreement in
those terms.
The validity of the plaintiff’s proposition that they tacitly
agreed to share everything, including the income
of the business
conducted by the defendant, must therefore be approached from that
vantage point.
[24] On that approach it is clear to me that the defendant shared in
the benefits derived from the plaintiff’s contribution.
First,
there is no evidence that during the short period of two years when
the plaintiff earned an income she applied those earnings
for
herself. The indications are that she shared that income with the
defendant. If it were otherwise one would have expected it
to be put
to her in rebuttal of her statement that they shared everything. But
more significantly, in the present context, I believe,
is that the
defendant shared the benefits of the plaintiff’s contribution
to the maintenance of their common home and the
raising of the
children. With regard to the latter it is of some consequence, I
think, that she was not only prepared to take responsibility
for the
children of the parties, but also for the defendant’s daughter
from a previous relationship. If the question were
to be asked, what
more she could have done to promote their family life over 20 years,
the answer would probably be ‘nothing’.
[25] From the plaintiff’s point of view it is clear that she
shared in the benefits of the defendant’s financial
contribution.
The defendant’s attitude that she paid the
household expenses with money supplied by him confirms this fact. In
short, he
paid for everything because she had no earnings of her own.
If the parties had spent all the money earned by the defendant in
this
way it would be quite plain, I think, that the contribution by
both parties, be it financial or otherwise, was shared and consumed
in the pursuit of their common enterprise. Does the fact that his
earnings exceeded their financial needs, which facilitated the
accumulation of capital assets, make any difference? I think not.
[26] What the defendant’s contention amounts to is that it must
be inferred from the conduct of the parties that, though
they
intended to share the benefits of their joint contribution, the
defendant would retain the surplus income and accumulate assets
only
for himself. From the plaintiff’s viewpoint that intent would
be quite remarkable. It would mean that she intended to
contribute
her everything for almost 20 years to assist the defendant in
acquiring assets for himself only; that in her old age
she would be
entirely dependent for her very existence on the benevolence of the
defendant towards her.
[27] It is true that according to the defendant’s
ipse dixit
during his testimony he indeed intended to keep everything he
acquired for himself to the entire exclusion of the plaintiff. But
I
believe there is more than one reason why this court is not bound by
the defendant’s self-serving
ipse dixit
. Firstly, it is
clear from his testimony that the defendant would say virtually
anything that advanced his cause. Secondly, when
evaluating the
conduct of the parties, the court is entitled to proceed from the
premise that they were dealing with one another
in good faith (see eg
South African Forestry Co Ltd v York Timbers Ltd
2005 (3) SA
323
(SCA) para 32). This must particularly be so where the parties
lived together in an intimate relationship in which they shared their
most personal interests for almost 20 years. An unexpressed mental
reservation on the part of the defendant, that he was willing
to
share in the benefits derived from the plaintiff’s
contribution, but not in the surplus fruits of his own, would not,
in
my view, satisfy the dictates of good faith. Finally there is the
plaintiff’s own appraisal of the defendant’s conduct,
namely that he was willing to share everything. Absent any statements
to her in cross-examination that her appraisal was mistaken
or
unsubstantiated, it must, in my view, be accepted as reasonable and
well-founded. Hence I agree with the court a quo that the
plaintiff
had succeeded in establishing Pothier’s second requirement for
a partnership.
[28] A further argument on behalf of the defendant was that the
plaintiff did no more than could be expected of a cohabitee. This
argument relied on the following statement, made in the context of
parties married out of community of property, in
Mühlmann v
Mühlmann
1984 (3) SA 102
(A) at 124D-E:
‘
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 had 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.’
[29] 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. In consequence I do not believe
that the
defendant’s case is assisted by this argument in any way.
[30] The final argument on behalf of the defendant derived from the
proposition that the position of cohabitees should not be identified
with that of spouses married in community of property. Support for
this proposition was sought in cases such as
Du Toit v Minister
for Wellfare and Population Development
[2002] ZACC 20
;
2003 (2) SA 198
(CC) and
Volks v Robinson
[2005] ZACC 2
;
2005 (5) BCLR 446
(CC), where the
Constitutional Court had recognised the importance of marriage as a
social institution, which is not to be equated
with mere
cohabitation. But the simple answer to this argument, I believe, is
that a universal partnership is not the same as a
marriage in
community of property. As pointed out by J J Henning
Law of
Partnership
30, there are numerous differences between the two
(see also eg
Hare v Estate Hare
1961 (4) SA 42
(W) at
44G-45D).
[31] To complete the picture: the defendant did not argue – and
I believe rightly so – that the third element of a
partnership
in terms of Pothier’s formulation had not been satisfied. On
all the evidence it is clear that the all-embracing
venture pursued
by the parties, which included both their home life and the business
conducted by the defendant, was aimed at a
profit; a profit which, in
my view, they tacitly agreed to share. On the only issue before us, I
therefore agree with the finding
of the court a quo, that the
plaintiff had succeeded in establishing a tacit universal partnership
between her and the defendant.
[32] In the result, the appeal is dismissed with costs including the
costs of two counsel.
…………………
F D J BRAND
JUDGE OF APPEAL
HEHER JA (CACHALIA JA concurring)
:
[33] I have read the judgment of my brother Brand JA. My conclusion
differs from his.
1
These are my reasons.
[34] This appeal is about an alleged tacit agreement. As in all such
cases the court searches the evidence for manifestations of
conduct
by the parties that are unequivocally consistent with consensus on
the issue that is the crux of the agreement and, per
contram, any
indication which cannot be reconciled with it. At the end of the
exercise, if the party placing reliance on such an
agreement is to
succeed, the court must be satisfied, on a conspectus of all the
evidence, that it is more probable than not that
the parties were in
agreement, and that a contract between them came into being in
consequence of their agreement. Despite the
different formulations of
the onus that exist: see the discussion in
Joel Melamed and
Hurwitz v Cleveland Estates (Pty) Ltd
[1984] ZASCA 4
;
1984 (3) SA 155
(A) at
164G-165G;
Christie’s The Law of Contract in South
Africa,
6ed 88-89, this is the essence of the matter.
[35] In any analysis of the evidence the most important
considerations are thus whether either party said or did anything to
manifest
his or her intention and, if so, what the reaction of the
other was.
[36] Where the tacit agreement that is relied on is one of universal
partnership the cardinal intention of both parties must be
to share
in the profits of the subject matter alleged to be covered by the
agreement. In the present instance by far the most significant
contributory factor to the ‘partnership’ estate was the
business started, managed and brought to a substantial level
of
success by the appellant alone during the cohabitation of the
parties.
[37] When parties cohabit in a state of amity over a long period, as
here, and a family results, it is likely that certain things
will
happen: the principal breadwinner will contribute substantially,
either regularly or on an ad hoc basis, to the needs of the
family by
providing accommodation, food, clothing, education, transport and
healthcare. To these will usually be added vacations
and presents of
various kinds. The other party, usually the woman, will stay at home
or engage in lesser employment and oversee
the needs of the family
and the upbringing of the children. These are the normal incidents of
cohabitation, just as they are of
marriage. That they happened in the
case under consideration contributes nothing to the present enquiry
because they are at best
equivocal, absent some evidential feature
that links them to the special intention that attaches to a universal
partnership. If
a cohabitee lays claim to a share in his or her
partner’s estate it does not assist that person to argue that
he or she will
be left with nothing without such an order. That is
the natural consequence of cohabitation without an agreement to
share.
[38] The duration of the cohabitation and the degree of financial
dependence attaching to one of the parties may seem to render
it more
probable that one or both of them implicitly intends to share his or
her all, but in fact both are just as likely to be
attributable to a
perceived obligation, inertia, boredom, disinterest or simply,
self-interest in preserving the status quo. Of
themselves, such
factors are also, therefore, ambiguous.
Analysing the evidence
[39] When the appellant started out, moonlighting in effect, the
respondent would go with him at weekends and help with the
installation
of alarm systems in cars and houses. She also introduced
him to friends who boosted his business. That was the extent of her
direct
contribution. It seems to have been of short duration and not
of enduring benefit. Beyond this there is no evidence of either
interest
or participation in his work or its fruits. There is no
suggestion that the fact that it was profitable produced in the
respondent
any reaction at all save an unacknowledged acceptance of
such largesse as he chose to bestow. She neither asked for any sort
of
accounting nor sought a greater contribution. Nor did her claims
increase with the burgeoning success of his endeavours. Under
cross-examination she admitted that she had never set foot in the
business premises in Grahamstown and knew next to nothing of the
business or how it was conducted. Soon after the appellant began
operating in Grahamstwon he purchased a house there at which the
respondent stayed when she visited him. By the time of their
separation in 2007 the appellant personally or through close
corporations
owned some twenty properties in various Eastern Cape
towns. The respondent did not hold a registered interest in any. Her
evidence
did not suggest that she played any role in their
acquisition, maintenance, leasing out, collection of rents or
otherwise.
[40] The respondent started work as a secretary in the Department of
Education as a relief from boredom when the children were
at school.
She earned R2000 per month but, so she testified, was persuaded by
the appellant to stop after two years in order to
care for the
children. The appellant bought a vehicle for her. He also supplied
her with a credit card and a petrol card for both
of which he made
the payments that arose from their use.
[41] Asked by her counsel how financial affairs were organised
between herself and the appellant the respondent replied:
‘
Everything
I mean was for both of us, no-one saying that one is mine and the
other one is mine. We are sharing everything.’
[42] This was, at best, a subjective
view that remained unsupported by evidence. It gained nothing by the
failure to attack it under
cross-examination. When counsel for the
appellant put to the respondent that she had played no part
whatsoever in the appellant’s
business affairs and that the
contributions she had made were nothing more than would ordinarily be
expected of someone in her
circumstances, the respondent had nothing
to say.
[43] When the appellant testified the
respondent’s counsel neither suggested to him that he and the
respondent intended to
share in the estate amassed by him or behaved
as if they so intended. Nor were any instances of conduct that
pointed to that conclusion
adduced in cross-examination. The
appellant denied in examination in chief the respondent’s
evidence that they ‘shared
everything’. His denial was
left unchallenged in cross-examination. I do not think, given the
critical nature of the denial
and the lack of countervailing
evidence, that it is correct or fair to dismiss it as a self-serving
untruth. Nor do I consider
an intention to retain what is one’s
own to be contrary to good faith – there is no reason to doubt
that if the parties
had not fallen out, acrimoniously, the appellant
would have maintained the respondent for the rest of her life. The
evidence did
not establish that her expectations went beyond this.
[44] The evidence as a whole was
skimpy in the extreme. On the cardinal issue it was, in my view,
non-existent. The respondent produced
nothing that established an
intention on her part to share in the full breadth of his estate. The
appellant said and did nothing
to treat the respondent as other than
an ad hoc recipient of the fruits of his labours according to his own
generosity (or tight-fistedness)
at any given time.
[45] In my view the respondent failed
to discharge the onus on her at the trial. For that reason I would
uphold the appeal with
costs, set aside paragraphs 1 to 5 of the
order of the court below and substitute for them an order of
absolution from the instance
on the claim for a declaration,
directing each party to pay his or her own costs.
__________________
J A Heher
Judge of Appeal
APPEARANCES
:
For
Appellant: J J Gauntlett SC
R G
Buchanan SC
Instructed
by: Spilkins Inc
PORT
ELIZABETH
Correspondents:
Symington & De Kok
BLOEMFONTEIN
For
Respondent: A Beyleveld SC
N J
Mullins
Instructed
by: Lulama Prince & Associates
PORT
ELIZABETH
Correspondents:
Honey Attorneys
BLOEMFONTEIN
1
I
agree with Brand JA’s exposition of the law contained in paras
12 to 19 of his judgment. My disagreement stems from his
assessment
of the evidence in paras 23 to 29 thereof.