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[2011] ZASCA 167
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Ponelat v Schrepfer (802/2010) [2011] ZASCA 167; 2012 (1) SA 206 (SCA); [2012] 1 All SA 532 (SCA) (29 September 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 802/2010
In the matter between:
HANS GUNTER PONELAT
…........................................................
Appellant
and
ERICA SCHREPFER
….................................................................
Respondent
Neutral citation:
Ponelat v Schrepfer
(802/10)
[2011] ZASCA 167
(29 September 2011)
Coram:
Heher, Maya, Malan, Majiedt JJA and Meer
AJA
Heard: 31 August 2011
Delivered: 29 September 2011
Summary:
Contract – whether tacit contract
of universal partnership can be inferred from proven facts –
existence of tacit universal
partnership confirmed.
________________________________________________________
ORDER
___________________________________________________________
On appeal from:
Eastern Circuit Local Division of
the High Court (Moosa J sitting as court of first instance):
1. The appeal is dismissed with costs.
2. The order of the court below is replaced by the
following:
‘
(A) In respect of the first
claim:
(1) It is declared that a universal partnership existed
between the plaintiff and the defendant and that the plaintiff had a
35
per cent and the defendant a 65 per cent share in such
partnership;
(2) It is declared that the said partnership was
dissolved with effect from 1 April 2005;
(3) Failing agreement between the parties within a
period of two months (or such longer period as the parties may in
writing agree
upon) on the net benefit accruing to the plaintiff from
the partnership and the manner and date of delivery or payment of
such
benefit to the plaintiff-
(i) It is ordered that a liquidator be appointed to
liquidate the said partnership;
(ii) Unless the parties agree in writing on the
appointment of a liquidator, the liquidator shall be appointed at the
request of
either of the parties by the Chairperson of the Law
Society of the Cape of Good Hope;
(iii) The parties shall within one month of the
appointment of the liquidator deliver to the liquidator and to each
other a statement
of his or her assets and liabilities as at 1 April
2005 duly supported by such available documents and records as are
necessary
to establish the extent of such assets and liabilities;
(iv) The liquidator may call on either of the parties
either mero motu or at the request of one of them to deliver further
documents
or records to the liquidator and the other party;
(v) The liquidator shall determine a date for the
debatement of the statements referred to in paragraph (iii) and shall
preside
over such debatement;
(vi) The liquidator shall within one month of the
conclusion of the debatement make an award in writing determining the
assets and
liabilities of the partnership and dividing the nett
assets by awarding 35 per cent to the plaintiff and 65 per cent to
the defendant;
(vii) The parties shall give effect to any award made by
the liquidator within such period as he may direct in writing.
(viii) The costs of the liquidator shall be borne by the
parties in proportion to their shares in the partnership estate.
(4) The defendant is ordered to pay the plaintiff’s
costs of suit.
(B) In respect of the second claim:
The plaintiff’s second claim is dismissed with
costs.’
___________________________________________________________
JUDGMENT
___________________________________________________________
MEER AJA (HEHER, MAYA, MALAN and MAJIEDT JJA
concurring)
[1] This is an appeal from a judgment of Moosa J sitting
as court of first instance in the Eastern Circuit Local Division of
the
High Court in terms of which the court found that a tacit
universal partnership agreement existed between the parties and made
an order for its division. The appeal is with leave of the court a
quo.
[2] The respondent as plaintiff in the court a quo
instituted action against the appellant as defendant, seeking relief
in respect
of two claims. It is convenient to refer to the parties as
they were in the court a quo.
The first claim sought a declaration that a universal
partnership existed between the parties, an order confirming the
dissolution
of such partnership and the appointment of a liquidator.
The first claim was premised on an oral agreement, alternatively on
an
implied and/or tacit agreement based on the conduct of the
parties. Alternatively, the plaintiff sought an order for maintenance
at the rate of R12 000 per month until her death, re-marriage or
permanent cohabitation with a partner.
The second claim, as a separate and not alternative
claim was for damages in the amount of R100 000 for iniuria
arising from
the defendant’s alleged breach of promise to marry
the plaintiff.
[3] The defendant opposed the action and in his plea
denied that a universal partnership existed between himself and the
plaintiff
or that the plaintiff was entitled to maintenance. In
respect of the second claim he denied that he had promised to marry
the plaintiff.
He further pleaded that an agreement of engagement as
postulated in the second claim, was destructive of the first claim
and the
existence of a universal partnership.
[4] At the trial the plaintiff and two witnesses
testified on her behalf. The defendant closed his case without
testifying. The
court a quo found that a tacit universal partnership
existed between the parties, the plaintiff’s share therein
being 35
per cent and that of the defendant, 65 per cent. The
partnership was found to have commenced on 4 March 1989 and to have
terminated
on 1 April 2005. The alternative claim for maintenance and
the second claim for damages based on a breach of promise were
dismissed
with costs. It is against the finding of a tacit universal
partnership that the defendant appeals. The paramount issue which
arises
on appeal therefore is whether a tacit universal partnership
agreement existed between the parties.
[5] The evidence of the plaintiff was as follows: The
defendant, born in 1938, and the plaintiff, born in 1945, formed a
romantic
relationship during 1988. The plaintiff worked as a
freelance beautician at the time and the defendant owned a successful
electrical
business which he had built up with his late wife. In
March 1989 the defendant invited the plaintiff to move in permanently
with
him as his life partner. He promised to support her and also
look after her 16 year old son. He expressed a desire to marry her
but explained that he could not do so at that stage because the will
of his deceased wife stipulated that if he remarried within
ten years
of her death he would forfeit a share of his inheritance to his sons.
He promised to marry the plaintiff when the ten
year period expired.
The plaintiff moved into the defendant’s home in Benoni where
they lived together as man and wife, sharing
a joint household. The
defendant informed the plaintiff, ‘what is mine is yours’.
This statement was repeated several
times during the duration of the
relationship. As the defendant gave no evidence it is not possible to
determine his understanding
of these words.
[6] Prior to the move the plaintiff had at the
defendant’s request sold her furniture and effects and the
proceeds of approximately
R10 000 were made available to the
joint household, as were the proceeds from the sale of her car. The
plaintiff continued
working as a freelance beautician and contributed
her earnings, on average R2 000 per month, towards their joint
expenses.
However at the defendant’s request the plaintiff
stopped working soon after they began living together. The
defendant’s
domestic worker was discharged and the plaintiff
took over all household responsibilities and domestic chores, a task
she continued
for the 16 years that the parties lived together. In
August 1989 the defendant agreed that the plaintiff could go back to
work,
which she did as a personal assistant, earning a salary of
R2 500 per month. Her income once again went towards their joint
expenses.
[7] In March 1994 the parties became engaged to marry
and the defendant presented the plaintiff with an engagement ring.
The defendant
had described their relationship by the German terms
‘Lebensgefährte’ or ‘Lebensgenosse’
which denoted
that they would give each other love and companionship
as partners for life. The plaintiff described the defendant as her
protector
and provider.
[8] According to the plaintiff the defendant’s
electrical business was his contribution to the universal partnership
which
she alleged came into existence between them. The defendant had
initially rented the business premises but had later purchased the
property on the plaintiff’s advice that it would be more
beneficial to own than rent the property. The defendant also owned
the property in which they lived. The properties were registered in
the name of a company, Ponelat Properties (Pty) Ltd, of which
the
defendant was the sole shareholder and director. Although the
plaintiff was not active in the defendant’s business, she
assisted with the administration after hours, and during lunch times
when required. She also helped out when the defendant’s
secretary was absent or on leave. In addition she provided for the
defendant’s needs and comfort, entertained guests and
business
associates and served as his confidante and advisor.
[9] The plaintiff stopped working in 1998 at the
defendant’s request. He wanted her to retire with him to live
on a farm in
Plettenberg Bay. The plaintiff’s salary had by
then increased to R5 600 per month which she continued to
contribute
towards joint expenses. She also had between R2 000
and R3 000 in her bank account and an amount of R100 000
had
accrued to her provident fund. The defendant purchased a farm in
Plettenberg Bay for R790 000, which was registered in the
name
of Ponelat Properties and he moved there in 1998. The plaintiff
joined him in 1999 after she had arranged for the rental of
the
business premises and negotiated the sale of the house in Benoni. The
house was sold for R480 000 at a profit and the
proceeds went
towards funding the purchase of the farm. Upon moving to Plettenberg
Bay the defendant asked the plaintiff to close
her bank account as he
would provide for her. She trusted him and did so.
[10] In Plettenberg Bay the plaintiff was actively
involved in improving and running the farm. She assisted with the
construction
of two self-contained apartments to generate additional
income. She designed and furnished these, supervised the workmen and
purchased
the material. Thereafter the plaintiff managed the
apartments as tourist accommodation and generated income for the
joint household.
The witness, Lorraine Gregory, who stayed on the
farm with her family as a paying guest, testified about the
plaintiff’s
accomplishments as a hostess.
[11] On the farm the plaintiff also assisted in rearing
and feeding cows and calves and with the felling of trees which
netted approximately
R70 000. In addition she performed the
administrative, book-keeping and clerical tasks and supervised the
employees, negotiating
agreements and overseeing disputes. She
corresponded and negotiated with SARS and the Department of Labour in
connection with farming
operations and negotiated leases with
prospective tenants. Documentary and photographic evidence of the
aforementioned activities
were furnished. The plaintiff’s
testimony about her involvement on the farm was corroborated by her
son Guido.
[12] In June 2000 the defendant applied in the names of
the parties for membership to a retirement village. The plaintiff was
referred
to as the defendant’s spouse in the application. In
August 2003 the farm was sold for R3 500 000. According to
the plaintiff due to her intervention and advice the farm was sold
for R500 000 more than the defendant was prepared to accept.
The
defendant thereafter bought a house in Plettenberg Bay for R1 500 000
to which the parties relocated. A flat was
built, which together with
a pre-existing flat, improved the property. The plaintiff was
actively involved in the renovations and
refurbishings. The bigger
apartment was let out to generate income. The plaintiff continued to
perform the administrative functions
as before.
[13] Of the proceeds from the sale of the farm, the
defendant invested R1,2 million in an Old Mutual Insurance policy
held by the
parties. The policy provided for one lump sum payment,
and the proceeds thereof were payable to the survivor on the death of
one
of the parties. An amount of R600 000 of the proceeds of the
sale of the farm was paid to the defendant’s son for his
involvement on the farm. The plaintiff noted that she did not get her
share for improving the farm, pointing out that the value
of both the
farm and the house subsequently purchased had been increased by the
contribution of her skills, labour and expertise.
[14] During 2004 the plaintiff began to feel financially
insecure about her future after the defendant experienced certain
life
threatening incidents. She asked the defendant for written
confirmation that she was entitled to a half share of the partnership
estate. Her attorney received a letter from the defendant’s
attorney dated 26 October 2004, which stated as follows:
“
On condition that your client remains
living with our client under the present circumstances, she will
benefit from his deceased
estate in the event of our client’s
death namely:
1. Our client has left in his Last Will and Testament to your client
the following namely:
1.1 One-third of the balance of his current account with Nedbank;
1.2 One-third of the balance of his Old Mutual Investment in units
trusts held with Old Mutual currently;
1.3 His Mercedes Benz C220 diesel motor vehicle, registration number
CX 39794, engine number 64696330177608 current value R300 000-00
(three hundred thousand rand);
1.4 One-sixth un-divided share in his immovable property known as Erf
929, Bitou Municipality, Plettenberg Bay;
1.5 The right of occupation in respect of flat number one of the said
Erf 929, aforesaid, free of charge, after our client’s
death
until the sale of the property or her death or her marriage which
ever is the sooner;
1.6 All the above uses awarded to your client is subject thereto that
she remains living with our client until his death, failing
to do so,
the awards made as set out hereinabove become nil and void.
In addition as an alternative to the above, should your client wish
to separate from our client, our client is prepared to award
to your
client the following on a contractual basis namely:
1. R100 000-00 (one hundred thousand rand) cash payment with
immediate effect;
2. A further R100 000-00 (one hundred thousand rand) payable
over 60 (sixty) consecutive months, following the month after
the
first R100 000-00 as aforesaid has been paid.
There are various reasons and circumstances that [are] not set out in
this letter, referring to the first 10 (ten) years that our
respective clients have spent together and the later 6 (six) years
which they have spent together in Plettenberg Bay, during which
respective periods of time, our client has financially maintained
your client with all her needs, despite the fact that she was
at one
stage earning a salary of approximately R6 000-00 (six thousand
rand) per month, and [is] currently receiving interest
of R1 000-00
(one thousand rand) per month. Her personal needs, includes medical
aid and personal requirements not to mention
herein.
Our client is then prepared to enter into an agreement with your
client along these lines, and await your response thereto.
Please note that there is no obligation on our client to do so, but
he is prepared to do so in the circumstances.’
The plaintiff did not accept the offer as contained in
the letter.
[15] The relationship between the parties came to an end
on 1 April 2005. The plaintiff initially moved out of the common home
into
the bachelor flat on the premises and thereafter into a flat of
her own for which the defendant paid a deposit. The defendant gave
her R1 500 a month until February 2007. The plaintiff had very
little to show in the form of assets on the termination of
the
relationship. She was entitled to R1 300 a month from her
retirement annuity and 400 Swiss francs from a Swiss pension.
A trade
reference given by the defendant to the plaintiff as an employee
after the termination of their relationship corroborates
the evidence
of the plaintiff that she served as a freelance hostess, entrusted
with the task of ensuring that the accommodation
for tourists was in
good condition and that their needs were taken care of. He describes
her as honest, reliable, hard working
and a gracious host. No adverse
inference against the plaintiff can be drawn from the fact that she
was described as an employee
in this reference. She typed it on the
defendant’s instructions.
[16] During cross-examination the plaintiff emphasised
that her contribution to the partnership went beyond that of the
ordinary
housewife, asserting that an ordinary housewife has a
domestic helper and an ordinary housewife is not a secretary. She
emphasised
moreover that if the defendant only wanted to give her a
roof over her head he could have given her a cottage next door,
instead
of making her give up her life to move in with him, promising
what was his was hers, and promising to marry her. She was adamant
that had they married it would have been in community of property.
[17] The credibility of the plaintiff was challenged
when she was cross-examined about notice of motion proceedings
instituted and
subsequently abandoned by her, in which she had
claimed the same relief as in the action proceedings, and the various
amendments
which were sought and effected to her particulars of claim
in the latter proceedings. Counsel for the defendant submitted in
this
context that the plaintiff’s particulars of claim had
undergone a metamorphosis like the claim of the defendant in the
case,
McDonald v Young
292/10
[2011] ZASCA 31
heard recently
by this court. The comparison is misplaced. In
McDonald
the
appellant sought the confirmation of a joint venture agreement,
alternatively the payment of maintenance. This court noted
that there
were a number of unsatisfactory aspects in the appellant’s
testimony and referred to how his claim had developed
over time. His
testimony in the magistrates’ court that at the time the
parties met to settle their dispute, he did not have
a claim, was in
stark contrast to his later testimony in the high court that his
claim at that meeting was inter alia for his share
in the disputed
property. Thereafter a letter from the appellant’s attorney
stated that a universal partnership had existed
between the parties.
In comparison, the testimony of the plaintiff in this matter was not
characterised by similar unsatisfactory
aspects, and her claim did
not develop during her evidence.
[18] The plaintiff’s pleaded version,
notwithstanding various amendments to her particulars of claim, and
her testimony that
a universal partnership agreement was concluded,
remained unchanged. Unlike the defendant in
McDonald
, the
plaintiff did not contradict herself and her evidence withstood
extensive cross-examination. The amendments to her particulars
of
claim were precipitated, inter alia, by exceptions taken by the
defendant and cannot be said to illustrate her developing a
claim
over time. The plaintiff’s evidence on the facts was either
common cause or largely unchallenged. By choosing not to
testify in
the face of her evidence, the defendant took the risk of the issue
being determined on the plaintiff’s evidence.
The trial court
correctly in my view found the plaintiff to be a credible witness.
[19] The essentials of a universal partnership were
succinctly summarised in the passages of the judgment of the trial
court quoted
hereunder:
‘
The essentials of a special contract of
partnership were confirmed in the case of
Pezzuto
v Dreyer
[1992] ZASCA 46
;
1992 (3) SA 379
(A) at 390, as
follows:
“
Our courts have accepted
Pothier
’s
formulation of such essentials as a correct statement of the law
(Joubert v Tarry & Co
1915 TPD 277
at 280-1;
Bester v
Van Niekerk
1960 (2) SA 779
(A)
at 783H-784A;
Purdon v Muller
1961 (2) SA 211
(A) at 218 B-D).
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.”
The
essentialia
of the partnership set out above applies
equally to a universal partnership. In this regard see
Muhlmann v
Muhlmann
1981 (4) SA 632
(W);
V(aka L) v De Wet NO
1953
(1) SA 612
(O) at 615;
Isaacs v Isaacs
1949 (1) SA 952
(C) at
956 and
Schaeffer
: Butterworths Family Law: Cohabitation at
page 3). The contract of partnership may not necessarily be
expressed. It could be tacit
or implied from the facts, provided they
admit of no other conclusion than that the parties intended to create
a partnership (
Festus v Worcester Municipality
1945 CPD 186
(C)). 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
(
Muhlmann v Muhlmann
1984 (3) SA 102
(A);
Kritzinger v
Kritzinger
1989 (1) SA 67
(A);
Ally v Dinath
1984 (2) SA
451
(T) and
V(aka L) v De Wet
(
supra
).’
[20] A universal partnership in which the ‘parties
agree to put in common all their property, both present and future’,
is known as
universum bonorum
(see
Isaacs v Isaacs
1949 (1) SA 952
(C ) at 955, citing
Pothier’s translation),
which in
Sepheri
v
Scanlan
2008 (1) SA 322
at 338C-D was described as
effectively a community of property. In
Mühlmann
v Mühlmann
1984 (3) SA 102
(A) at 124C-D
the approach as to whether a tacit agreement can be held to have been
concluded was said to be, ‘whether it
was more probable than
not that a tacit agreement had been reached’. It was also
stated that a court must be careful to ensure
that there is an
animus
contrahendi
and that the conduct from which a
contract is sought to be inferred is not simply that which reflects
what is ordinarily to be expected
of a wife in a given situation. See
Mühlmann v Mühlmann
supra at 123H-I;
Mühlmann
v Mühlmann
1981
(4) SA 632
(W) at 634F-H.
[21] Counsel for the defendant argued that the existence
of a promise to marry was an express agreement which was destructive
of
a tacit universal partnership. The defendant appeared to rely on
the
McDonald
case for this submission too. Once again the
comparison is misplaced. In
McDonald
this court found that a
reliance on a tacit agreement regarding maintenance could not be
sustained as such was inconsistent with
the appellant’s
evidence that there was an express agreement in respect of certain
property, the aim of which was to ensure
that the appellant was
financially independent and would not have to rely on the respondent
for support. The evidence was clearly
contradictory on these two
aspects. The same cannot be said about the evidence of the plaintiff
concerning the promise to marry
and the tacit universal partnership
agreement.
[22] It is apparent from the case law that a universal
partnership can exist in a marriage as was the case in
Mühlmann
supra and
Fink v Fink
1945 WLD 226.
It does
not follow then that a universal partnership cannot exist between
parties who are engaged to be married. A universal partnership
exists
if the necessary requirements for its existence are met, and this is
regardless of whether the parties are married, engaged
or cohabiting.
See V
(aka L) v De Wet NO
at
614B-E, 615F-616A. The evidence is clear that the respondent wanted
(and, after throwing herself at the mercy of the appellant,
needed)
immediate security and that the respondent, aware of that need,
voluntarily committed himself to satisfy it.
[23] The evidence suggests that from the nature of the
discussions between the parties prior to their cohabiting and their
intent
during their 16 years together, they had the requisite
animus
contrahendi
to form a universal partnership.
The plaintiff came into the relationship on the basis that the
defendant would give her what was
his and she would give him what was
hers, (a stronger statement of the creation of a communal estate it
would be hard to imagine).
There was the promise of security. And
during their 16 years together the parties did pool their assets and
resources. The plaintiff
contributed all she had financially and
physically, the proceeds of the sale of her assets, her salary, time,
energy, labour, skills
and expertise. Using an analogy from the
Appellate Division decision in
Mühlmann
referred to at paragraph 20 above, regarding the conduct
ordinarily expected from a wife, it can be said that plaintiff’s
conduct was not simply that which is ordinarily to be expected of a
cohabitee. The defendant contributed his business, financed
the
various properties and provided financial security. The pooling of
their resources, their joint investment of R1,2 million
in the form
of the Old Mutual policy and the plaintiff’s entitlement to the
proceeds thereof in the event of the defendant’s
death, their
working together to secure their retirement and increase their income
are all indicators of the existence of a universal
partnership. So
too the appellant’s offer to the plaintiff, in the letter of 26
October 2004, of effectively a fair portion
of his estate.
[24] In my opinion the essentials of a contract of
universal partnership have been established. Each party brought
something into
the partnership, the partnership was carried on for
their joint benefit and the object was to make a profit.
1
The activities engaged in by the parties were for their
joint benefit and they increased their assets. This being so I am in
agreement
with the court a quo that it was more probable than not
that a tacit universal partnership agreement existed between the
parties.
The universal partnership came into being in March 1989 and
was terminated on 1 April 2005.
[25] There was no appeal against the trial court’s
adjudcation of the respective interests of the parties in the
partnership.
The distribution of 35 per cent/ 65per cent, which I
believe in all the circumstances to have been fair and equitable,
remains.
[26] The order of the court a quo does not make
provision for the appointment of a liquidator to liquidate the estate
of the partnership.
It is therefore necessary to amend the order to
provide for such appointment.
[27] I accordingly grant the following order:
1. The appeal is dismissed with costs.
2. The order of the court below is replaced by the
following:
‘
(A) In respect of the first
claim:
(1) It is declared that a universal partnership existed
between the plaintiff and the defendant and that the plaintiff had a
35
per cent and the defendant a 65 per cent share in such
partnership;
(2) It is declared that the said partnership was
dissolved with effect from 1 April 2005;
(3) Failing agreement between the parties within a
period of two months (or such longer period as the parties may in
writing agree
upon) on the net benefit accruing to the plaintiff from
the partnership and the manner and date of delivery or payment of
such
benefit to the plaintiff-
(i) It is ordered that a liquidator be appointed to
liquidate the said partnership;
(ii) Unless the parties agree in writing on the
appointment of a liquidator, the liquidator shall be appointed at the
request of
either of the parties by the Chairperson of the Law
Society of the Cape of Good Hope;
(iii) The parties shall within one month of the
appointment of the liquidator deliver to the liquidator and to each
other a statement
of his or her assets and liabilities as at 1 April
2005 duly supported by such available documents and records as are
necessary
to establish the extent of such assets and liabilities;
(iv) The liquidator may call on either of the parties
either mero motu or at the request of one of them to deliver further
documents
or records to the liquidator and the other party;
(v) The liquidator shall determine a date for the
debatement of the statements referred to in paragraph (iii) and shall
preside
over such debatement;
(vi) The liquidator shall within one month of the
conclusion of the debatement make an award in writing determining the
assets and
liabilities of the partnership and dividing the nett
assets by awarding 35 per cent to the plaintiff and 65 per cent to
the defendant;
(vii) The parties shall give effect to any award made by
the liquidator within such period as he may direct in writing.
(viii) The costs of the liquidator shall be borne by the
parties in proportion to their shares in the partnership estate.
(4) The defendant is ordered to pay the plaintiff’s
costs of suit.
(B) In respect of the second claim:
The plaintiff’s second claim is dismissed with
costs.’
_______________________
Y S MEER
Acting Judge of Appeal
APPEARANCES:
For
appellant: P E Jooste
T
Zietsman
Instructed
by:
Jordaan & Pretorius Attorneys c/o J C van der Berg
Attorney, George
Rosendorff
Reitz Barry, Bloemfontein
For
respondent: De Waal Nigrini
Gaby
Damalis
Instructed
by:
Schwarz-North
Attorneys c/o Millers Inc, George Honey & Partners, Bloemfontein
1
A
pure pecuniary profit motive is not required. The achievement of
another material gain, such as the joint exercise for the saving
of
costs will suffice. See
Ally v Dinath
1984 (2) SA 439
(T) at 455A-C.