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[2020] ZAECPEHC 40
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Jacobs v Wagenaar N.O (1654/2020) [2020] ZAECPEHC 40 (20 October 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH)
Case No: 1654/2020
Not
Reportable
Heard: 13 October 2020
Delivered:
20 October 2020
In
the matter between:
DANIEL JACOBUS JACOBS
Plaintiff
AND
CHRISTIAAN WAGENAAR
N.O.
Defendant
JUDGMENT
Lindoor AJ
[1]
This is an application for default judgment
in terms of the provisions of Uniform Rule 31(5) (b)(vi) which was
referred for hearing
in open court by the Registrar.
[2]
The plaintiff issued a summons in which he
claims:
First
Claim
:
1.
The partnership between the Plaintiff and
the Defendant is dissolved;
2.
A liquidator is to be appointed if the
parties are not able to agree on the division of the assets of the
partnership;
3.
The Defendant is to pay the Plaintiff an
amount of R597 000.00;
4.
Interest at a rate of 10.5% on the capital
amount from date of summons;
5.
Costs of the action; and
6.
Further and/or alternative relief.
Second
Claim in the alternative to the First Claim
:
1.
The defendant is to pay the Plaintiff an
amount of R597 000.00;
2.
Interest at a rate of 10.5% on the capital
amount from date of summons;
3.
Costs of the action; and
4.
Further and/or alternative relief.
[3]
The defendant, who is sued herein in his
capacity as executor of the estate of the late Elsa Ezelle Rossouw
(hereinafter “the
deceased”) elected not to defend the
matter, insofar as no notice of intention to defend the matter was
filed.
[4]
The plaintiff was called to testify by his
counsel and his evidence is on record uncontested. He testified that
he met the deceased
in Bloemfontein whilst living there and they
started courting and became engaged to be married on the 9
th
September 2011. At that time he was doing contract work in Iraq, but
his contract came to an end in the year 2016.
[5]
He testified further that he re-applied to
his former employer, the South African Police Services and his
application was successful.
He was appointed to the Canine Unit of
the South African Police Services in Port Elizabeth, and that is how
he and the deceased
ended up in Port Elizabeth during or about
October 2016.
[6]
At the time of his relocation to Port
Elizabeth, neither he nor the deceased owned any immovable property
in Port Elizabeth.
[7]
During January 2017, the plaintiff and the
deceased jointly purchased an immovable property in Port Elizabeth,
known as Erf 2398
Hunters Retreat, Nelson Mandela Bay Metropolitan
Municipality, for a purchase price of R1 010, 000.00 (the
property). Exhibit
“B” which was handed up to court is a
photocopy of the Deed of Transfer No. T4067/2017 of the property.
[8]
It was the plaintiff’s evidence that
the purchase price for the property was paid for in cash by himself
and that the deceased
did not contribute towards payment of the
purchase price. He withdrew the sum of R600,000.00 from his bond
account, as he put it
and added a further sum of R400, 000.00 in cash
which he had saved from his contract work in Iraq. It was his further
evidence
that although the deceased did not contribute towards the
purchase price of the property, it was agreed between the parties
that
the deceased would at some future point in time repay the
plaintiff for her half share in the property. I shall return to this
point later.
[9]
The plaintiff testified that the deceased
and himself formed a universal partnership and part of the relief
sought from this court
is that the partnership formed between the
plaintiff and deceased be dissolved.
[10]
The deceased left a last will and
testament, which was handed up to court and marked exhibit “D”,
in terms of which
her entire estate was bequeathed to her daughter
Marizelle Rossouw. The plaintiff clearly will not inherit anything
from the estate
of the deceased, although part of the deceased’s
estate will consist of her undivided half share in the immovable
property.
[11]
The plaintiff’s evidence is lastly,
that on account of the fact that the deceased passed away without
repaying him for her
half share of the immovable property, he was
compelled to institute a claim against the deceased estate for
payment of the sum
of R505 000.00 which represents fifty (50)
percent of the purchase price paid for the property.
[12]
Counsel for the plaintiff, in his closing
submissions, sought an amendment of the amount in prayer 3 on page 10
of the record from
R597 000.00 to R505 000.00. The
amendment is accordingly granted.
[13]
Having considered the uncontested evidence
of the plaintiff I am satisfied that the plaintiff is entitled to the
relief sought in
the first claim in his particulars of claim.
[14]
It is clear that when the plaintiff and the
defendant became engaged to be married, that a partnership was
formed, which fact is
further evidenced by the purchase and
registration of the immovable property in both the deceased’s
and the plaintiff’s
names.
[15]
The
Supreme Court of Appeal in
Ponelat
v Schrepfer
[1]
referred
to the essentials of a universal partnership which were succinctly
summarised in the judgment of
Pezzutto
v Dreyer and Others
[2]
as
follows:
“
The
three essentials are (1) that each of the partners bring something
into the partnership, whether it be money, labour or skill;
(2) that
the business should be carried on for the joint benefit of the
parties; and (3) that the object should be to make a profit
(Pothier
A Treatise on the Contract of Partnership (Tudor's translation)
1.3.8). A fourth requirement mentioned by Pothier is that
the
contract should be a legitimate one. However, as has been pointed out
previously, this requirement is one common to all contracts
and is
therefore not a particular essential of a partnership (see Bester v
Van Niekerk (supra at 784A-B)). Where Pothier's four
requirements are
found to be present the Court will find a partnership established
'unless such a conclusion is negatived by a
contrary intention
disclosed on a correct construction of the agreement between the
parties' (Purdon v Muller (supra at 218E-F)).
In essence, therefore,
a partnership is the carrying on of a business (to which each of the
partners contributes) in common for
the joint benefit of the parties
with a view to making a profit.”
The essentialia of the
partnership set out above applies equally to a universal partnership.
[16]
The
court in Ponelat with reference to
Mühlman
v Mühlman
[3]
states
further that:
“
Our
courts have recognised that a universal partnership, also known as
domestic partnership, can come into existence between spouses
and
co-habitees where they agree to pool their resources.”
This
is precisely what transpired in the present matter.
[17]
I am, therefore, satisfied that a universal
partnership came into existence between the deceased and the
plaintiff. I further accept
the uncontested evidence of the plaintiff
that the deceased did not in her lifetime reimburse him for fifty
(50) percent of the
purchase price in the immovable property, and
accordingly, he is entitled to payment of that amount from the estate
of the deceased.
[18]
I accordingly make the following order:
1.
It is declared that a universal partnership
existed between the plaintiff and the deceased, Elsa Ezelle Rossouw
and that the partnership
is hereby dissolved;
2.
Failing an agreement between the parties on
the division of the assets of the partnership, that a liquidator be
appointed to liquidate
the said partnership;
3.
The defendant is to pay the plaintiff the
sum of R505 000.00;
4.
The aforesaid sum of R505 000.000
shall accrue interest at the legal rate of 10.5% as from date of
service of the summons to
date of payment.
5.
The defendant is to pay the plaintiff’s
costs of suit.
____________________
J. LINDOOR
ACTING
JUDGE OF THE HIGH COURT
Obo the
Plaintiff: Adv I.
Lambrechts
Instructed by
van der Berg Attorneys, 7 Bird Street, Central,
Port Elizabeth
Ref:
Quinton
Cell:
084 343 2573
[1]
2012
(1) SA 206
(SCA) at 212H-I
[2]
[1992] ZASCA 46
;
1992
(3) SA 379
(A) at 390 as follows:
[3]
1984
(3) SA 102
(A)