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[2011] ZASCA 31
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McDonald v Young (292/10) [2011] ZASCA 31; 2012 (3) SA 1 (SCA) (24 March 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
C
ase No:
292/10
In the matter between:
IAN LESLIE McDONALD
...............................................................
Appellant
and
LESLEY JUDITH YOUNG
...........................................................
Respondent
Neutral citation:
McDonald
v Young
(292/10)
[2011] ZASCA 31
(24 March 2011)
Coram:
MPATI P, CLOETE,
SNYDERS and THERON JJA and PETSE AJA
Heard: 17 February 2011
Delivered: 24 March 2011
Summary:
Contract
─ Standard of proof necessary ─ Uncontradicted evidence
is not necessarily acceptable or sufficient to discharge
an onus.
Maintenance ─
There is no legal duty of support on unmarried cohabitants.
Formation of a tacit
contract regarding maintenance ─ A tacit contract cannot be
inferred where its terms would conflict with
an express contract ─
Evidence and conduct of the parties must justify an inference that
there was consensus between them.
_____________________________________________________________________
ORDER
On appeal from:
Western
Cape High Court (Cape Town) (Veldhuizen J sitting as court of first
instance):
The appeal is dismissed with
costs.
___________________________________________________________
JUDGMENT
THERON JA (MPATI P, CLOETE,
SNYDERS JJA and PETSE AJA concurring)
[1] The parties were involved in
a relationship and had cohabited, as man and wife, for approximately
seven years from June 1999
until May 2006. After the relationship
broke down, the appellant instituted an action against the respondent
in the Western Cape
High Court (Cape Town) for an order declaring
that a joint venture agreement existed between the parties in respect
of immovable
property (the property) situate at Port Island, Port St
Francis, in the Eastern Cape, alternatively, for an order that the
respondent
pay maintenance to the appellant. The high court
(Veldhuizen J) found that the appellant had failed to prove the
existence of a
joint venture agreement and, in respect of the
maintenance claim, that there was no duty on the respondent to
support the appellant.
The appellant appeals to this court with the
leave of the high court.
[2] The issues on appeal, as in
the high court, are whether the appellant has established the
existence of a joint venture agreement
between the parties,
alternatively, whether the respondent is under a duty (by operation
of law, or alternatively, by virtue of
a tacit contract) to support
the appellant subsequent to their cohabitation.
[3] Shortly after the parties
were introduced to each other the appellant took up residence with
the respondent at her farm in Knysna.
The appellant’s main
business interest was the promotion and marketing of surfing and
surfboard products. During 1999, the
appellant and his Durban-based
brother had been in the process of establishing a new business, Inter
Surf Africa Exporters (ISAE),
which was involved in the manufacture
and export of surfboards. The appellant did not possess any
meaningful assets and had very
limited income. The respondent, on the
other hand, was a woman of considerable means. She had an annual cash
income in excess of
R1,3m and possessed substantial assets. When the
appellant and the respondent met, they were 59 and 54 years of age,
respectively.
It was common cause that the appellant had not been in
receipt of a regular income and had, for a time, during the course of
the
relationship, received a monthly allowance from the respondent.
[4] The appellant’s claim
to a half-share in the property was based on an express oral joint
venture agreement concluded by
the parties. The appellant testified
that the terms of the agreement were that the respondent would
contribute financially to the
acquisition, completion and
refurbishment of the property while the appellant would contribute
his time and expertise to oversee
the development of the property.
According to the appellant, it was agreed that they would each share
jointly in the property.
The appellant testified that the primary
objective of the agreement was to ensure that he gained financial
independence. Despite
the fact that the property was to have been
registered in both their names, it was subsequently agreed, according
to him, that
the property would be registered in the respondent’s
name for tax purposes. It was common cause that the initial written
agreement had reflected both their names as purchasers of the
property.
[5] It was contended, on behalf
of the appellant, that the high court had erred in failing to accept
and rely on the appellant’s
evidence regarding the agreement,
having particular regard to the fact that his evidence was
unchallenged. It was further contended
that the respondent’s
failure to testify was fatal to her case and that this court was
obliged to accept his unchallenged
evidence in respect of both the
agreement and the claim for maintenance.
[6] It is
settled that uncontradicted evidence is not necessarily acceptable or
sufficient to discharge an onus. In
Kentz
(Pty) Ltd v Power
,
1
Cloete J
undertook a careful review of relevant cases where this principle was
endorsed and applied. The learned judge pointed out
that the most
succinct statement of the law in this regard is to be found in
Siffman
v Kriel
,
2
where Innes CJ
said:
‘
It
does not follow, because evidence is uncontradicted, that therefore
it is true . . . The story told by the person on whom the
onus rests
may be so improbable as not to discharge it.’
[7] It is thus necessary to
consider the appellant’s evidence in detail. It is clear from
the judgment of the high court that
it was mindful that the
appellant’s evidence, in order to be reliable, had to be
credible. The high court, on the evidence,
reached the conclusion
that the respondent had ‘initially intended that the contract
should reflect the [appellant] as one
of the purchasers’.
However, it did not accept his evidence in its entirety and went on
to find that the appellant had failed
to prove the existence of a
joint venture agreement.
[8] In my view, there were a
number of unsatisfactory aspects in the appellant’s evidence.
It is significant to note how the
appellant’s claim against the
respondent has developed over time. During May 2006 and shortly after
the parties parted ways,
they met, in the presence of their
respective attorneys, with a view to settle the disputes between
them. The appellant’s
evidence regarding the claim he had
advanced at that meeting, was as follows:
‘
So
the idea was to try and settle the split between yourself and Mrs
Young? --- I accept ─ I looked at it like that because
it did
look like we weren’t going to get together again, so I assumed
that that was the reason.
And what were your
claims that day? --- My claims that day with regards to my share of
Port St Francis, with regards to my contribution
I had made over the
seven years and discussion on my contract with the bakkie.’
This was in
stark contrast to his testimony in the magistrate’s court
3
to the effect
that he had, at the time of the meeting, been under the impression
that he did not have a claim against the respondent
and that the
claim had ‘materialised some time afterwards when I . . .
approached some attorneys for advice’. The appellant’s
explanation for the contradiction, that he had meant to convey that
he had not yet ‘implemented’ his claim, is, in
my view,
unsatisfactory. The very purpose of the meeting was an attempt to
resolve the dispute between himself and the respondent
without the
need to resort to litigation.
[9] On 17 July
2006, and following upon the May 2006 meeting, the appellant’s
attorney wrote a letter to the respondent’s
attorney, which was
intended to ‘motivate and substantiate’ the appellant’s
claim against the respondent ‘as
comprehensively
as possible’.
(My emphasis.) It was recorded in the letter that the appellant
believed that a universal partnership had existed
between the parties
and that he was entitled to ‘
some
form of compensation
’
(Again
my emphasis.) for his contribution to the partnership. It is
instructive that no mention was made of the appellant’s
half-share in the property, despite the fact that the appellant
testified that he had given his attorney instructions in this regard
and that he (the appellant) had had sight of the letter prior to it
being dispatched. The development of the appellant’s
claim over
time is not without significance.
[10] During the period that the
parties were cohabiting, the appellant drafted numerous agreements
and proposals, the purpose of
which was to define the financial
relationship between him and the respondent. It is not necessary, for
the purpose of this judgment,
to consider all the agreements entered
into between the parties or drafted by the appellant. On 24 July
2003, the respondent executed
a sole agency mandate in terms of which
she appointed the appellant as agent to sell the property and
undertook to pay a commission
of ten per cent to him. It was the
appellant’s testimony that the commission he would have earned
was to have provided him
with financial security. The appellant
agreed that he had, during October 2004, drafted an agreement, aimed
at resolving the constant
disputes he and the respondent had had
regarding his financial security. The salient terms of this agreement
were that (i) he was
appointed as sole agent to sell two properties,
including the property which is the subject of this dispute; (ii) he
would be paid
a commission of ten per cent for securing the sale of
the properties; and (iii) the respondent would purchase government
retail
bonds to the value of R500 000 on behalf of the appellant. It
was also his evidence that the relationship between him and the
respondent
had been particularly volatile at that time and his
intention, in drafting this agreement, was to achieve clarification
regarding
his financial position.
[11] It is surprising that the
appellant failed to mention his half-share in the property in the
October 2004 proposal. This is
even more surprising when regard is
had to his evidence that he was at that time concerned, as there was
uncertainty regarding
his financial future. The wording of this
proposal, as well as the agency agreement, excludes the possibility
that he had acquired
a share in the property. It is, in my view,
extremely improbable that had the parties agreed in 1999 when the
property was purchased
that they would be joint owners thereof, the
appellant would not, in 2004, have recorded his right to, or even a
claim for, a half-share
in a proposal aimed at settling outstanding
matters between him and the respondent.
[12] Counsel for the appellant
attached great importance to the fact that the initial agreement had
recorded both parties’
names as purchasers. The appellant
assumed that both names were inserted on the instructions of the
respondent. There is no evidence
to support this assumption. Even if
such instructions did emanate from the respondent, it does not
necessarily follow, as was found
by the high court, that this meant
that there was an agreement between the parties as alleged by the
appellant. The recording of
both parties’ names is nothing more
than an indicator pointing towards the conclusion of an agreement and
it is a factor
to be considered in conjunction with the
probabilities.
[13] There are a number of
factors that support the respondent’s denial of the existence
of a joint venture agreement between
the parties. These include: the
claim as articulated at the meeting with their legal representatives
shortly after the break-up,
the letter written after that meeting,
various agreements drafted by the appellant, and the unsatisfactory
and often contradictory
evidence given by the appellant. I pause to
mention that the appellant contradicted himself on one of the
essential terms of the
agreement, namely, whether it was agreed that
he would be entitled to half of the proceeds of the sale of the
property only or
the property together with its contents.
[14] The
appellant bore the onus of proving the agreement upon which he relied
as well as the terms thereof. Having regard to the
deficiencies in
the appellant’s evidence and the probabilities, it cannot be
said that it measures up to the standard required
for acceptability
in respect of the existence of the joint venture agreement. In
Da
Mata v Otto NO
,
4
Van Blerk JA,
dealing with the approach to be adopted when deciding probabilities,
said:
‘
In
regard to the appellant's sworn statements alleging the oral
agreement, it does not follow that because these allegations were
not
contradicted ─ the only witness who could have disputed them
had died ─ they should be taken as proof of the facts
involved.
Wigmore on
Evidence,
3rd
ed., vol. VII, p. 260, states that the mere assertion of any witness
does not of itself need to be believed, even though he
is unimpeached
in any manner, because to require such belief would be to give a
quantative and impersonal measure to testimony.
The learned author in
this connection at p. 262 cites the following passage from a decision
quoted:
“
It
is not infrequently supposed that a sworn statement is necessarily
proof, and that, if uncontradicted, it established the fact
involved.
Such is by no means the law. Testimony, regardless of the amount of
it, which is contrary to all reasonable probabilities
or conceded
facts ─ testimony which no sensible man can believe ─
goes for nothing; while the evidence of a single
witness to a fact,
there being nothing to throw discredit thereon, cannot be
disregarded.”’
In my view, the appellant’s
testimony is contrary to all reasonable probabilities and, despite
the fact that it was unchallenged,
counts for ‘nothing’.
In assessing the probabilities, the conclusion seems to be
inescapable that the appellant has
not discharged the onus resting on
him. It follows that the appellant is not entitled to the relief
sought in respect of the main
claim.
[15] I turn
now to consider the alternative claim for maintenance. I shall deal
first with the argument that such a duty existed
by operation of law.
In South African law, certain family relationships, such as parent
and child and husband and wife, create
a duty of support. The common
law has been extended in line with the Constitution to protect
contractual rights of support in the
same way as the common law duty
of support.
5
In
Amod
v Multilateral Motor Vehicle Accidents Fund (Commission for Gender
Equality Intervening)
,
6
this court
recognised a contractual right to support arising out of a marriage
in terms of Islamic law for purposes of a dependant’s
action.
7
In
Du
Plessis v Road Accident Fund
,
8
the common law
action by a spouse, for loss of support against the wrongdoer who
unlawfully kills the other spouse, was extended
to partners in a
same-sex permanent life relationship similar in other respects to
marriage, who had tacitly undertaken reciprocal
duties of support.
The Constitutional Court in
Satchwell
v President of the Republic of South Africa & another
,
9
found that the
common law duty of support, could, in certain circumstances, be
extended to persons in a same-sex relationship. Madala
J, writing for
the court, commented as follows:
‘
The
law attaches a duty of support to various family relationships, for
example, husband and wife, and parent and child. In a society
where
the range of family formations has widened, such a duty of support
may be inferred as a matter of fact in certain cases of
persons
involved in permanent, same-sex life partnerships. Whether such a
duty of support exists or not will depend on the circumstances
of
each case.’
10
[16] Counsel
for the appellant relied on
Kahn,
Amod
and
Du Plessis
in support of
his contention that a legal duty of support rests on the respondent.
This contention is misplaced. In both
Amod
and
Khan
,
the parties in respect of whom a duty of support had been alleged had
been married to each other in terms of Islamic law. The
ratio of the
court, in both cases, was that the marriage between the parties had
given rise to reciprocal contractual duties of
support on the part of
the parties to that marriage. In
Du
Plessis
,
Cloete JA, having had regard to the facts of that matter, concluded
that the plaintiff had proved that the deceased had undertaken
to
support him and that the deceased had owed the plaintiff a
contractual duty of support. The learned judge of appeal said:
11
‘
In
the present case the case for drawing an inference that the plaintiff
and the deceased undertook reciprocal duties of support
is even
stronger. The plaintiff and the deceased would have married one
another if they could have done so. As this course was
not open to
them, they went through a “marriage” ceremony which was
as close as possible to a heterosexual marriage
ceremony. The fact
that the plaintiff and the deceased went through such a “marriage”
ceremony and did so before numerous
witnesses gives rise to the
inference that they intended to do the best they could to publicise
to the world that they intended
their relationship to be, and to be
regarded as, similar in all respects to that of a heterosexual
married couple, ie one in which
the parties would have a reciprocal
duty of support. That having been their intention, it must be
accepted as a probability that
they tacitly undertook a reciprocal
duty of support to one another.
Further support for
this finding is the fact that the plaintiff and the deceased
thereafter lived together as if they were legally
married in a stable
and permanent relationship until the deceased was killed some 11
years later; they were accepted by their family
and friends as
partners in such a relationship; they pooled their income and shared
their family responsibilities; each of them
made a will in which the
other partner was appointed his sole heir; and when the plaintiff was
medically boarded, the deceased
expressly stated that he would
support the plaintiff financially and in fact did so until he died.’
Amod
,
Khan
and
Du
Plessis
were
decided on the basis of contracts entered into by the respective
parties, and are not authority for the contention that there
is a
duty of support, by operation of law, on the respondent to maintain
the appellant.
[17]
The question whether the relationship between the parties, a
heterosexual couple who choose to live together, free from the
bonds
of matrimony, gives rise to a legal duty of support, can, in my view,
be answered with reference to
Volks
NO v Robinson & others
.
12
In that matter the Constitutional
Court was concerned with the interpretation and constitutionality of
s 2(1), read with s 1, of
the Maintenance of Surviving Spouses Act 27
of 1990, which confers on surviving spouses the right to claim
maintenance from the
estates of their deceased spouses if they are
not able to support themselves.
13
The court had to determine whether
the exclusion of survivors of permanent life partnerships from the
protection of the Act constituted
unfair discrimination. Skweyiya J,
writing for the majority, referred with approval to the comments made
by O’Regan J in
Dawood
& another v Minister of Home Affairs & others
;
Shalabi & another v Minister
of Home Affairs & others
;
Thomas & another v Minister of
Home Affairs & others
14
that:
‘
Marriage
and the family are social institutions of vital importance. Entering
into and sustaining a marriage is a matter of intense
private
significance to the parties to that marriage for they make a promise
to one another to establish and maintain an intimate
relationship for
the rest of their lives which they acknowledge obliges them to
support one another, to live together and to be
faithful to one
another.
. . .
The
institutions of marriage and the family are important social
institutions that provide for the security, support and companionship
of members of our society and bear an important role in the rearing
of children. The celebration of a marriage gives rise to moral
and
legal obligations, particularly the reciprocal duty of support placed
upon spouses and their joint responsibility for supporting
and
raising children born of the marriage. These legal obligations
perform an important social function.’
15
(Footnotes omitted.)
[18]
The Constitutional Court was of the view that the law may distinguish
between married people and unmarried people and may,
in appropriate
circumstances, accord benefits to married people which it does not
accord to unmarried people.
16
The learned justice reasoned as
follows in para 55:
‘
There
are a wide range of legal privileges and obligations that are
triggered by the contract of marriage. In a marriage the spouses’
rights are largely fixed by law and not by agreement, unlike in the
case of parties who cohabit without being married.’
[19]
The court found that whilst there was a reciprocal duty of support
between married persons, ‘no duty of support arises
by
operation of law in the case of unmarried cohabitants’.
17
This was an unequivocal statement of
the law by the Constitutional Court. Skweyiya J went on to state that
to the extent that any
obligations arise between cohabitants during
the subsistence of their relationship, these arise by agreement and
only to the extent
of that agreement.
18
[20] I turn now to consider
whether the respondent assumed a contractual duty of support towards
the appellant. The argument, presented
as a second alternative to the
claim based on a joint venture, was that the court should find that
the parties had entered into
a tacit agreement in terms of which the
respondent had agreed to support the appellant even after the end of
their relationship.
[21] The facts upon which the
appellant relies in support of his claim that the respondent had
assumed a duty of support towards
him are the following:
(i) He and the respondent had
lived together as if they were legally married in a stable and
permanent relationship;
(ii) The respondent had supported
him during the seven-year period that they had resided together and
the appellant had been dependent
on such support. She had given him
an allowance, provided transport for him and paid for entertainment
and overseas holidays;
(iii) The respondent had, in a
series of wills, made extensive provision for financial support of
the appellant in the event of
her death;
(iv) The respondent was a wealthy
woman while he had no assets and very limited income;
(v) He had contributed to the
maintenance of and increase in value of the respondent’s
estate, often at the expense of his
own business interests; (vi) The
appellant was reliant on an income from employment and could not, due
to his advanced age, guarantee
for how much longer he would be able
to earn a living; and
(vii) The respondent had advised
the appellant that she had sufficient funds to support both of them.
[22] The
argument that the parties had entered into a tacit agreement
regarding maintenance cannot be sustained for a number of
reasons.
First, the reliance on a tacit contract is inconsistent with the
appellant’s evidence. The appellant believed and
gave evidence
to the effect that he and the respondent had concluded an express
agreement in respect of the property, the aim of
which was to ensure
that he was financially independent. Implicit in this is the
intention that he would not have to rely on the
respondent, or any
other person, for financial support. In the circumstances, the
appellant could not have formed the intention
to contract tacitly
with the respondent. Having regard to his evidence that the purpose
of the joint venture agreement was to render
him financially
independent, the appellant could not at the same time have
contemplated, that the respondent would continue to
support him for
the rest of his life. A tacit contract must not extend to more than
the parties contemplated.
19
In
Rand
Trading Co Ltd v Lewkewitsch
20
the parties
had erroneously assumed that there was a contract in existence
between them. The court did not accept the argument that
the
company’s conduct in recognising the existence of the lease,
paying the rent and otherwise performing in terms of the
contract had
created a binding contract. Solomon J said:
‘
But
I think the answer to that argument is a very clear one, and it is
this ─ that all these facts are explained on the simple
ground
that both parties erroneously assumed that there was a contract in
existence between them . . . And the mere fact . . .
that both
parties erroneously assumed that there was a contract in existence at
that date altogether precludes us from now inferring
a new
contract.’
21
[23] The appellant’s stated
belief, that there was an express contract between him and the
respondent in respect of the property,
precludes this court from
drawing an inference to the effect that the parties had entered into
a tacit agreement the terms of which
were inconsistent with the
express agreement to which he testified. It was not open for the
appellant to contend that if the court
disbelieved his evidence that
a joint venture agreement had been concluded, the court should infer
from the proved facts that a
tacit contract had come into existence,
because such an inference cannot be drawn where it would conflict
with what he said was
the actual position. A litigant can plead, but
not testify, in the alternative.
[24] Secondly, the appellant’s
evidence was that the respondent’s attitude had always been
that in the event that their
relationship ended, he would receive no
financial benefit from her. This conduct, on the part of the
respondent, is inconsistent
with a tacit agreement to support the
appellant. The appellant’s explanation for drafting the various
proposals regarding
the financial relationship between him and the
respondent was as follows:
‘
Well,
the motivation behind it at that particular time, we were going
through quite a patchy period; we were arguing and not agreeing
on a
lot of things. And it appeared to me that all of a sudden my
situation could alter and I’d be left standing
high
and dry
.
And I discussed it with Lesley [the respondent] and I felt that if we
had something in writing, and if that did occur at least
I had
something to fall back on . . . ’. (
Emphasis
added.)
[25] It is
trite that a tacit contract is established by conduct. In order to
establish a tacit contract, the conduct of the parties
must be such
that it justifies an inference that there was consensus between
them.
22
There must be
evidence of conduct which justifies an inference that the parties
intended to, and did, contract on the terms alleged.
It is clear from
the appellant’s evidence that there was no consensus between
the parties. The appellant, on his own testimony,
was uncertain about
his financial future. He realised that he would only be entitled to
what had been agreed between the parties,
hence his desire to have a
written contract ‘to fall back on’. The respondent’s
attitude, as testified to by
the appellant, that he would leave the
relationship without any financial benefit, is an indicator that she
had not, tacitly or
otherwise, agreed to support the appellant. I am
not satisfied that this court can conclude, from all the relevant
proven facts
and circumstances, that a tacit contract, in terms of
which the respondent undertook to financially maintain the appellant,
for
as long as he needed such maintenance, came into existence.
[26] For these reasons, the
appellant’s maintenance claim which is premised on a legal,
alternatively, a contractual duty,
must also fail.
[27] The appeal is dismissed with
costs.
___________________
L Theron
Judge of Appeal
APPEARANCES
APPELLANT: RS van Riet SC
Instructed by Johan Rhoodie
Attorneys, Pretoria;
Hill McHardy & Herbst Inc,
Bloemfontein
RESPONDENT: (Ms) A de Vos SC
Instructed by Millers Attorneys,
George;
Rosendorff Reitz Barry,
Bloemfontein
1
[2002]
1 All SA 605
(W).
2
1909
TS 538
at 543.
3
The
appellant had, during February 2007, instituted an action against
the respondent in the magistrates’ court, Knysna,
in which he
claimed damages from the respondent for, inter alia, wrongfully and
maliciously setting the law in motion by launching
a false and
unfounded application for a protection order against him.
4
1972
(3) SA 858
(A) at 869B-E.
5
See
Langemaat
v Minister of Safety and Security & others
1998
(3) SA 312
(T).
Santam
Bpk v Henery
[1999] ZASCA 5
;
1999
(3) SA 421
(HHA);
Petersen
v Maintenance Officer & others
2004
(2) BCLR 205
(C).
6
1999
(4) SA 1319 (SCA).
7
See
Khan v Khan
2005 (2) SA 272
(T).
8
2004
(1) SA 359
(SCA).
9
[2002] ZACC 18
;
2002
(6) SA 1
(CC);
2002 (9) BCLR 986.
10
Para
25.
11
Paras
14 - 15.
12
[2005] ZACC 2
;
2005
(5) BCLR 446
(CC).
13
Section
2(1) of the Act states that:
‘
If a
marriage is dissolved by death after the commencement of this Act
the survivor shall have a claim against the estate of the
deceased
spouse for the provision of his reasonable maintenance needs until
his death or remarriage in so far as he is not able
to provide
therefor from his own means and earnings.’
14
[2000] ZACC 8
;
2000
(3) SA 936
(CC )
[2000] ZACC 8
; ;
2000 (8) BCLR 837.
15
P
aras
30-31.
16
Para
54.
17
Para
56.
18
Para
58.
19
Wessels,
Law of Contract in
South Africa
2nd ed
vol 1 para 266(3).
20
1908
TS 108.
21
At
115.
22
Standard
Bank of South Africa Ltd & another v Ocean Commodities Inc &
others
1983 (1) SA
276
(A) at 292B–C;
Joel
Melamed and Hurwitz v Cleveland Estates
(
Pty
)
Ltd
;
Joel Melamed and
Hurwitz v Vorner Investments (Pty) Ltd
[1984] ZASCA 4
;
1984
(3) SA 155
(A) at 164G–165G.