Jones v Jones (2472/2020) [2021] ZAECPEHC 42 (16 August 2021)

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[2021] ZAECPEHC 42
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Jones v Jones (2472/2020) [2021] ZAECPEHC 42 (16 August 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
CASE
NO.
2472/2020
In
the matter between:
ANSU
JONES
Applicant
And
CECIL LEWIS
JONES
Respondent
JUDGMENT
GQAMANA
J
[1]
The applicant claims payment from the respondent in the amount of
R977 000.00 as well the
costs.
[1]
This application concerns the enforcement of an undertaking by the
respondent to pay to the applicant fifty percent of the
net proceeds
from the sale of the farm, emanating from an oral agreement to that
effect.
[2]
The background facts which underpins this application are as follows.
The applicant and the
respondent were married to each, until such
marriage was terminated by a divorce order on 8 November 2002.
[2]
The terms of the aforesaid divorce order reads:
“
Dat die
huweliksband tussen eiser/es en verweerderles hierby ontbind word.
Dat die Ooreenkoms
tussen die partye ingehanding en gemerk “B”, hierby ՝n bevel van
die Hof gemaak word.”
[3]
In terms of clauses 2.1, 2.3 and 6 of the aforesaid settlement
agreement referred to in the
divorce order the parties agreed
inter
alia,
that:
“
ONROERENDE
EIEDOM GELEё TE SLIGOSTRAATE 6, KENMARE,
KRUGERSDORP
:
[the Krugersdorp property]:
2.1
Hierdie eiendom bly die gesamentlike eiendom van die Eiser en die
Verweerder, onderhewig
aan die Eiser se lewenslange vruggebruik
(ius
habitatio
).  Die Eiser se prokureurs van rekord word opdrag
gegee om na afloop van die verkryging van die egskeidingsbevel
sodanige
ius habitatio
teen die titelakte van die eiendom te
laat registreer.
2.3
Indien die eiendom by ooreenkoms tussen die partye verkoop sou word,
word die netto-opbrengs
van die verkoop van die eiendom gelykop
tussen die partye verdeel.  Mnre Couzyn Hertzog & Horak sien
toe tot oordrag van
die eiendom.
QUANDO FLORA
GIFTS
[the flower shop]
6
Die Verweerder onderneem om sy 50% - aandeel in die blommewinkel,
Quando Flora
Gifts aan die Eiser oor te dra sonder om enige
vergoeding daarvoor te ontvang asook om alle dokumentasie op aanvraag
te onderteken
ten einde uitvoering te gee aan die oordrag van sy
ledebelang.”
[4]
Despite the divorce order, the applicant and respondent decided to
continue with cohabitation
and, for many years thereafter they lived
together as partners but were not married.  In 2003, the
respondent purchased the
Balmoral farm (“the farm”) for R445
000.00 and a bond was registered over the farm.  It is contended
by the applicant that
the intention of the respondent and her was
that, both of them should be registered as joint owners of the farm.
However, she
only became aware later that she was not registered as
the joint owner in the farm.  In support of her contention, she
attached
the copy of the deed of sale and she contends that she
signed it and her name as the purchaser together with the respondent
was deleted.
Her version is denied by the respondent.
[5]
The Krugersdorp property and the flower shop were both sold.
There is a dispute about
the purchase price of the Krugersdorp
property but that is of no moment in my view.  Because it is
common cause that in terms
of clause 2.3 of the settlement agreement,
the applicant was entitled to 50% of the net proceeds of the
Krugersdorp property and
on her version she is not claiming that
amount in this application.  In addition, the respondent in
terms of clause 6 of the
settlement agreement had to transfer 50% of
his interest in the flower shop to the applicant.  The flower
shop was sold for
R180 000.00 and the entire amount had to be paid to
the applicant.  It is common cause that the proceeds of the
flower shop
(i.e. R180 000.00) and the 50% of the applicant’s net
proceeds on the sale of the Krugersdorp property, were both paid to
the respondent
instead of the applicant.  The respondent is also
not disputing that he used some of the proceeds of the sale of the
flower
shop and the Krugersdorp property which belonged to the
applicant, to fund the purchase of the farm.
[3]
The respondent, however, contends that this was done with the
applicant’s full knowledge and blessing.
[6]
During 2014/2015, the respondent made an oral undertaking to pay the
applicant 50% of the
net proceeds of the sale of the farm, whenever
that farm is sold.  On the applicant’s version, it is that
undertaking which
her claim is founded and which she seeks to
enforce.  It is common cause that the farm was sold for an
amount of R2 050 000.00
during 2020.
[7]
In opposing and resisting the relief the applicant seeks, the
respondent argued that the applicant,
through her attorney,
misrepresented to him that the applicant still has an enforceable
claim in terms of the divorce order which
was granted on 8 November
2002 and based on such misrepresentation, he made the offer in
error
and such error was
justus
.  Therefore, the applicant’s
claim against him was unenforceable.  In addition, the
respondent takes issue with the quantification
of the applicant’s
claim.
[8]
Flowing from the defences raised in the preceding paragraph, the
respondent seeks to escape
liability on the basis that, he was misled
by the applicant through her attorney in making the oral undertaking
to pay 50% of the
net proceeds of the sale of the farm.  On the
respondent’s version, he acted under the mistaken belief that the
amounts claimed
on the applicant’s behalf were due and payable and
had he been aware of the true state of affairs, that such amounts had
prescribed
and were no longer enforceable, he would not have made the
undertaking.  The respondent’s aforesaid defence is predicated
on his contention that the applicant’s claim is founded on the
divorce order granted in November 2002.
[9]
In advancing the respondent’s case,
Mr
Du Toit
argued that, the applicant’s claim for both the proceeds of the
sale of the flower shop, and the net proceeds of the sale of the
Krugersdorp property,
[4]
have
prescribed.
[10]
The applicant’s counsel Mr
Arnoldi
SC
conceded that, if the applicant’s claim was for the payment of the
R180 000.00 i.e. the proceeds of the sale of the flower shop,
such a
claim would have prescribed.  But his argument was that the
applicant’s claim is founded on an oral undertaking by
the
respondent to pay 50% of the net proceeds of the sale of the farm and
not on the old debt and, reference to the settlement agreement
in the
divorce order is simply to lay the historical background upon which
the oral undertaking was made by the respondent.
It was argued
that the old debt was taken over by the new undertaking that the
applicant would receive 50% of the proceeds of the
farm when it is
sold.  The applicant only became aware during 2020
[5]
that the farm was sold for an amount of R2 050 000.00 to Dicla
Training & Projects (Pty) Ltd.
[11]
Relevant to the respondent’s argument is section 11(a) and (d) of
the Prescription Act 68 of 1969,
(“the Act”) which deals with the
periods of prescription of debts.  A debt prescribes after 30
years in respect of a judgment
debt and three years in respect of any
other debt.
[12]
It is trite that prescription begins to run as soon as the debt is
due.  However, the term due is
not defined in the Act.  In
Standard
Bank of South Africa v Miracle Mile Investments 67 (Pty) Ltd and
Another
,
[6]
the SCA held that:
“
In terms of the
[Prescription] Act, a debt must be immediately enforceable before a
claim  in respect of it arise.  In the
normal cause of
events, a debt is due when it is claimable by the creditor, and as
the corollary thereof, is payable by the debtor.
Thus, in
Deloitte Haskins & Sells Consultants (Pty) Ltd Bowthhorpe
Hellerman Deutsch (Pty) Ltd 1991(1) SA 525 (A) at 532 G – H, the
court
held that for prescription to commence running,
“
there has to
be a debt immediately claimable by the creditor or, stated in another
way, there has to be a debt in respect of which
the debtor is under
an obligation to perform immediately.
”
[13]
Mr
du
Toit
made the following submissions that, the applicant’s rights and
entitlement on the net proceeds of the Krugersdorp property was
determined by the deed of settlement in the divorce order.  The
settlement agreement is silent on the time for payment of the
applicant’s portion of the proceeds and because there was no time
set, the debt became due when the Krugersdorp property was sold.
The property was sold in March 2005 and therefor, the debt was
immediately claimed then and has since prescribed in terms of s11(d)
of the Act.  The same argument was advanced in respect of the
proceeds of the flower shop that, the applicant’s claim for
R180
000.00 has also prescribed.  Therefor the undertaking the
respondent made was based on misrepresentation by the applicant’s
attorney that such debt was still enforceable.  For his
submission reliance was placed in
Trinity
Asset Management Pty Ltd v Grindstone Investment 132 (Pty) Ltd.
[7]
His entire argument was premised on the respondent’s contention
that the applicant’s claim is founded on the divorce order
of
November 2002.  To a greater extent, the argument on
prescription and misrepresentation are factually intertwined.
[14]
The evidence and case made out by the applicant in her founding
affidavit is that, her claim is for the
enforcement of the oral
undertaking made by the respondent that she would receive 50% of the
net proceeds of sale of the farm.
It is for an applicant to set
out and define the nature of the dispute in the founding affidavit
and the court’s duty is to adjudicate
upon those issues clearly
defined in the affidavits.  However where there are disputes of
facts between the applicant’s version
and that of the respondent,
the relief sought would be granted only if the facts stated by the
respondent, together with the facts
admitted in the applicants
affidavits justify the order.
[8]
[15]
In this case in my view, reference to the divorce order and the
settlement agreement in the applicant’s
founding affidavit was made
only to show the sound legal basis upon which the respondent made
such undertaking.  The applicant
is neither claiming the
proceeds of the flower shop nor that of the Krugersdorp property.
This is also borne out by the amount
that she claims in the notice of
motion.  Her claim is not for the R180 000.00 and the 50% of net
proceeds of the Krugersdorp
property, but the 50% proceeds of the
sale of the farm less the amount of R48 000.00 that she is indebted
to the respondent.
Until the farm was sold during 2020, her
debt was not claimable and there was no debt in respect of which the
respondent was under
the obligation to perform.  The debt became
due when the farm was sold.  Therefore, the applicant’s claim
has not prescribed.
[16]
The respondent further argued that he was misrepresented to make the
undertaking and as such he made
the offer in
error
, and such
error
was
justus
.
[17]
In
George
v Fairmead (Pty) Ltd
,
[9]
Fagan
CJ
said the following:
“…
if his
mistake is due to a misrepresentation, whether innocent or
fraudulent,
by the other party
, then, of course, it is the
second party who is to blame and the first party is not bound.” [my
underlining is my emphasis].
[18]
For the respondent to succeed on his defence of misrepresentation, he
has to prove that the applicant
and / or her attorney are to be
blamed.  The evidence presented herein,
[10]
i.e. emails and whatsapp messages all originate from the respondent.
The respondent himself expressly repeated his undertaking
in
different wording but, the content remaining the same that the
applicant would receive her 50% of the net proceeds of the sale
of
the farm.  To demonstrate this point, the respondent on numerous
occasions and evident in annexures “AJ3”, “AJ4”,
“AJ6”
and “AJ7” said the following:
“
Wanneer die plaas
verkoop
word
kry jy die helfte van die verkooprys min uitstaande bedrag
…
[11]
Ek sal my word hou
en
vir
jou die hefte van die plaas se geld gee
.
[12]
Ek se weer vir jou …
Jou
helfte van Balmoral is sy lig weilig
,
en my testament en ook met die ANC kontrak.  So moet nie daar
oor bekommerd wees nie
[13]
…
Ansu Ek het
geen,
doel
om jou te wil bedonner nie, jy kry jou helfte van die
“
F
…”
plaas
soos
ek
die
helfte gaan kry
…
Jy
kry die helfte van hierdie plaas soos wat ons ooreerngestem het
.
So, ek kan nie verstaan wat jou problem is, nou skielik nie asseblief
Ansu wat is dit nou met jou?”
[14]
[19]
The respondent in highlighting the misrepresentation he relied on,
referred me to annexure “CLJ3”
[15]
and argued that the applicant’s claim emanates from the settlement
agreement in the divorce order as evident in paragraph 2 thereof.
The letter states that the respondent was in terms of the court order
obliged to pay the amount of the sale of the flower shop to
the
applicant.  It was argued further that, paragraphs 3, 4 and 5 of
the same letter contains allegations that are factually
incorrect
which also misled the respondent.  The argument was further that
the misrepresentation is also evident from annexure
“CJL9”,
[16]
in that paragraph 2 thereof, again refers to the court order of 8
November 2002.  Based on these misrepresentations it was argued
that the respondent was entitled to resile from the undertaking
because he was misled to believe that the applicant’s claim was
still enforceable while in fact, it was not.  Therefor on the
basis of
justus
error
,
the respondent should be allowed to resile from the undertaking.
[20]
Mr
Arnoldi
SC
conceded that paragraph 2 of annexure “CLJ3”
[17]
is incorrect but he argued that what is contained therein is of no
consequence.
[21]
For what I have already stated in paragraphs 14, 15 and 18 above, my
objective evaluation of this case
and the annexures thereto, the
applicant’s claim is not founded on the settlement agreement, but
on the oral undertaking the respondent
made that, the applicant would
receive 50% of the net proceeds of the sale of the farm.  The
annexures that I referred to in
paragraph 18 above lends support to
my finding.  Reference to the old debt was merely to show the
legal basis upon which the
respondent made the undertaking.
[22]
The respondent’s argument is not sustainable on the facts and
evidence at my disposal.  The respondent
was aware of the
content of the settlement agreement in the divorce order.  He
was also aware of the sale price of the flower
shop and the
Krugersdorp property.  Reference to the sale of the flower shop
and the Krugersdorp property in annexure “CLJ11”
[18]
at paragraph 2.5 was incorporated therein to motivate to the
respondent’s attorney to come to the settlement of the matter.
Context is everything, because paragraph 2 of the letter, speaks
exactly on settlement of the applicant’s claim in respect of the
proceeds of the farm.
[23]
The applicant also argued that when the farm was purchased the
parties intended to be registered as joint
owners because the offer
to purchase, (annexure “X”) was signed by both of them but
unbeknown to the applicant, her name was
removed and she only became
aware of that later.  The respondent in his affidavit has not
denied that there was no intention
that the applicant and him would
be joint owners of the farm.  His contention was that there was
absolutely no need for the
applicant to be a co-owner of the farm
because the plan was not to farm the property on a commercial
basis.
[19]
However, I
find this issue, on whether there was such an agreement or not on the
joint ownership of the farm, to be of no moment.
Even if, that
issue is decided in favour of the respondent it would be
inconsequential to crux of this case.  The question here
is
whether the applicant through her attorneys misled the respondent to
make the undertaking on a debt which was not enforceable
and if so,
whether he should be allowed to resile from such undertaking.
[24]
On the respondent’s own version, he admits that he used some of the
proceeds of the sale of the flower
shop and the Krugersdorp property
to purchase the farm.
[20]
Flowing from this admission, the respondent took money which belonged
to the applicant and utilized it towards the purchase
of the farm.
It is comprehensible why the respondent made the undertaking to the
applicant that, she will receive 50% of the
net proceeds of the farm
when it is sold.  The respondent was not misled by the applicant
through her attorney to make such
undertaking.
[25]
The respondent’s further submission was that, even if the court
finds against him on misrepresentation,
the application must still
fail because the amount claimed in paragraph 1 of the notice of
motion has not been proved.
It is common cause that
the farm was sold for R2 050 000.00.
[21]
The undertaking by the respondent was to pay 50% of the
net proceeds of the sale of the farm.  There was a mortgage
bond
registered over the farm in the amount of R420 000.00.
There was no evidence of the outstanding amount over such
bond.
Neither was there evidence on any amounts due for agent’s fees that
were still to be paid from the purchase price.
[26]
The respondent was invited by the applicant’s attorney to submit
the final account in respect of the
sale of the farm in order for the
applicant to be able to calculate her 50% of the net proceeds which
she was entitled to.
In the same letter, the applicant stated
that on her available facts, her 50% share in the proceeds of the
farm would be R1 025 000.00
and invited the respondent to
dispute this amount and to state the correct version on the
information at his disposal.  The
respondent decided not to
dispute such calculation.  The applicant could not have been
expected to calculate more than what
was within her knowledge.
On the amount claimed in paragraph 1 of the notice of motion, the
applicant has subtracted
and set off an amount of R48 000.00, which
she is indebted to the respondent from the 50% net proceed of R1 025
000.00, which she
is entitled to in terms of the oral agreement with
the respondent.  Based on this evidence I am satisfied that the
claim was
properly quantified on behalf of the applicant.
[27]
On the issue of costs, there was no submission made by either of the
parties against the general rule,
that the costs follow the results
and there are no reasons on the facts herein to depart from such
general rule.
[28]
In the circumstances the following order would be issued:
1.
The respondent is ordered to pay to the applicant the amount of
R977 000.00.
2.
The respondent is ordered to pay the applicant’s the costs of this
application.
N
GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for the Applicant
:
Adv
A F Arnoldi SC
Instructed
by
:           Couzyn
Hertzog and Horak Inc.
Counsel
for the Respondents
:
Adv P du
Toit
Instructed
by
:           Britz
Attorneys
Date
heard
:           27 May
2021
Date
delivered
:           16
August 2021
[1]
Index; pp 1 – 2, prayers 1 and 3.  Prayer 2 was abandoned by
the applicant.
[2]
Index; p 14; annexure “AJ1”.
[3]
Index p 70 para 5.2.
[4]
Which was sold in March 2005.
[5]
Index; p 43.
[6]
2017(1) SA 185 (SCA) para 24.
[7]
2018 (1) SA 94
(CC) para 20.
[8]
Plascon–Evans
Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd
1984(3) SA 623 (A).
[9]
1958(2) SA 465 (A) at 471 C – D.
[10]
Annexures “AJ3”–AJ7”
[11]
Index; p 25, “AJ3”.
[12]
Index; p 27, “AJ4”.
[13]
Index; p 29, “AJ6”.
[14]
Index; p 30 “AJ7”.
[15]
Index; p 81(A), the letter of 20 January 2014, from the applicant’s
attorney.
[16]
Index; p 92.
[17]
At p 81(A).
[18]
Index; p 102.
[19]
Index p 70 para 52,.3.
[20]
Index p 70 para 52.2.
[21]
Index p 43, annexure “AJ11”.