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[2021] ZAGPPHC 36
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J.K.K v Maloi N.O (26365/2016) [2021] ZAGPPHC 36 (21 January 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
21/1/2021
CASE NO:
26365/2016
In the matter
between:
J[….]
K[….] K[….]
Plaintiff
And
EMMA
MMATHAPELO MALOI
N.O
Defendant
Delivered.
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. The date and time for
hand
down is deemed to be 10h00 on
22
January 2021.
JUDGMENT
RANCHOD, J
Introduction
[1]
The issue in this matter is whether there was a universal partnership
between the
plaintiff and – during his lifetime – the
late Mr W[....] M[....] (the deceased) who died on 3 November 2008.
(His
full names according to the Letters of Executorship are W[....]
M[....] M[....].)
[2]
The defendant, who was the customary law wife of the deceased, is
sued in her capacity
as the duly appointed executrix of the
deceased’s estate.
[3]
The plaintiff instituted this action more than seven years after the
deceased died.
At the end of the trial her case was summed up in her
counsel’s heads of argument as follows:-
3.1
‘
5.1
It is not disputed by the plaintiff that the deceased and the
defendant was
(sic)
in a
relationship before the plaintiff met the deceased in 1993. The
defendant only registered their marriage civilly a month after
the
death of the deceased. It is the plaintiff’s case that she and
the deceased met in 1993 and started a relationship, and
that she and
the deceased decided in January 1995 to move in together.
3.2
5.2
It is the
plaintiff’s case that she and the deceased were two
adults who shared an emotional,
physical and financial relationship like that of a married couple who
either chose not to get legally
married from 1 January 1995 until 3
November 2008. Plaintiff and the deceased shared a mutual obligation
of support for the necessities
of life. It was agreed by plaintiff
and the deceased that they will live together this way as husband and
wife.’
[4]
The evidence tendered by the three witnesses for the plaintiff and
three for the defendant
may be summarised as follows hereunder.
[5]
However, before dealing with the evidence it would be appropriate to
deal with the
plaintiff’s counsel’s contention that the
defendant’s plea was a bare denial and that the version in
evidence
given by the defendant at trial was not the same version as
pleaded. It was an ambush at trial. Hence, says plaintiff, any
version
put to the plaintiff by the defendant at trial should be
disregarded.
[6]
There is no all-embracing test to determine whether a pleading
contains ‘sufficient’
particularity.
[1]
The degree of precision or particularity required depends on the
circumstances of each case.
[2]
In
Sterling Consumer Products
[3]
it was held:
‘
that
a defendant may plead a bare denial of each and every allegation of
fact alleged in a plaintiff’s particulars of claim
provided,
firstly, that such denial does not give rise to ambiguity or lack of
clarity and provided, secondly, that such denial
is not evasive but
answers the point of substance.’
[7]
It is apparent that the plaintiff claims against the estate of the
deceased on the
basis that a universal partnership existed between
her and the deceased from some time during 1995 (when they ‘commenced
living together as husband and wife’
[4]
)
until the deceased died on 3 November 2008. Plaintiff then pleads
facts relating to the time when she lived together with the
deceased.
[8]
In her plea, the defendant denies knowledge of plaintiff’s
allegation that she
began living with the deceased from 1995 onwards
until his death. The defendant also denies knowledge of the
plaintiff’s
allegations as to what she and the deceased did
that led to the existence of a universal partnership.
[5]
The defendant denies that a universal partnership came into existence
on the basis of the facts pleaded in sub-paragraphs 5.1 –
5.7
of the particulars of claim.
[6]
The defendant also denies plaintiff’s allegations as to what
the tacit terms of the universal partnership were.
[7]
[9]
As I said, the defendant is sued in her capacity as executrix of the
deceased’s
estate. It is common cause or not in dispute that
the defendant was married to the deceased in accordance with
customary law. They
were never formally divorced.
[10]
During the course of the trial the defendant testified that she and
the deceased had separated
in 1993. In the circumstances, the
defendant’s denial of any knowledge of an alleged universal
partnership (which allegedly
came into existence in 1995) and its
terms cannot be faulted and the submission that defendant’s
version at trial should
be disregarded is, in my view without merit.
The defendant does not bear the onus and there was no duty on the
defendant to plead
a version with regard to the alleged universal
partnership and its terms when she has no knowledge thereof.
Factual
background
[11]
The action relates to a period of 13 years of alleged cohabitation
between the plaintiff and
the deceased and the existence of an
alleged tacit universal partnership between the said parties during
the abovementioned period.
[12]
The facts admitted between the parties that are common cause:
12.1 The parties to the action;
12.2 The court’s
jurisdiction;
12.3 The deceased died of
natural causes.
[13]
The disputes relate to the following issues:
13.1 The existence of the
alleged tacit universal partnership;
13.2 The terms of the alleged
universal partnership;
13.3 The assets forming part of
the alleged universal partnership;
13.4 Costs of the action.
[14]
The plaintiff claims half of the deceased’s estate in terms of
prayers 2 and 3 on the basis
that she held equal shares in the
alleged universal partnership and is a creditor for half of the
shares of the deceased’s
estate. However, in paragraph 10 of
her particulars of claim she avers that it was tacitly agreed that
the profits would be divided
in proportion to the amounts contributed
by each party. More about this later on.
Plaintiff’s
case
[15]
Three witnesses testified for the plaintiff
viz
plaintiff
herself, her daughter Ms M[....] K[....] and Mr Motoko Modiba who is
a taxi operator.
[16]
The plaintiff’s testimony during evidence in chief may be
summarised as follows:
16.1 She and the deceased started dating in 1993,
moved in together during 1995 in a house at [….] and
started
living together as husband and wife.
16.2 They only discussed the possibility of
marriage and then “agreed” to the partnership, because
she had future plans and was also assisting her mother in building a
house.
16.3 They had a good relationship and lifestyle
that was maintained by both herself and the deceased. She was
working
as a registered nurse and the deceased was conducting a taxi
business.
16.4 While living in the main house, they built a
second structure (on the same land) that had a bedroom, bathroom
and
a double garage, because there were too many vehicles parking
outside.
16.5 They put a ceiling in the main house (as the
house had none) and made renovations and bought furniture,
a TV stand
(room divider), sofas, coffee table, dining room suit, two bedroom
suites, oven and a stove.
16.6 They purchased taxis, a Nissan Sani which was
exchanged for a Mercedes Benz, and a Toyota Avanza which was
exchanged for a Toyota Verso. It was for personal use and business
use. The taxi business was a partnership to make a profit for
both
the deceased and herself.
16.7 They opened 3 bank accounts and equally
deposited money in them for all purposes and investments.
16.8 In 1997 a child was born, being M[....]
K[....], and she, the deceased and the minor child lived together
in
the house. She and the deceased both maintained the minor child and
paid her expenses.
16.9 She assisted the deceased by attending taxi
meetings, doing banking, checking of money, bought motor vehicle
spares and parts, liaised with taxi drivers and attended to repairs
of the vehicles with the deceased.
16.10 The deceased paid for her vehicle’s tracker, they
attended social functions together, they were introduced as
a couple
and the deceased referred to her as his “wife”.
16.11 She looked after the deceased when he was sick, cared for
him and paid his funeral expenses.
16.12 The plaintiff testified that she only took over the taxi
business
after
the deceased passed away.
16.13 When the plaintiff was asked by her counsel if she knew
anything about the deceased’s previous marriage she said
no,
she only knew that he had paid lobola.
[17]
The following emanated during cross examination:
17.1 The plaintiff testified that she instructed
her attorney to amend her pleadings after summons was served
to read
that “
they pooled their respective resources equally
”,
“
a biological child of the deceased
” and a whole
new paragraph containing the alleged terms of the universal
partnership. It was put to the plaintiff that she
changed her version
to suit her alleged claim.
17.2 The plaintiff could not answer what type of
universal partnership she alleges came into existence.
17.3 The plaintiff conceded that when she moved
into the house at [….] in 1995, the house was already
built
and she did not contribute anything towards the building costs.
17.4 The plaintiff was taken through her further
particulars of claim wherein she stated that ALL furniture was
bought
subsequent to 1995. She said she does not have any proof of this.
When the plaintiff was asked to tell the court under oath
that before
she moved into the house, the deceased had no plates to eat out of,
knives or forks to eat with, no chairs to sit on
and no table to sit
at, and she answered “
yes
”.
17.5 It was put to the plaintiff that a witness
will testify and deny her version in that that witness and the
deceased lived in that house which they built after 1985 and the
testimony that there was nothing in it except a bedroom suite
and a
sofa is highly improbable. The plaintiff did not answer.
17.6 The vehicles that the plaintiff testified
about in evidence in chief are different from the vehicles that
are
pleaded in the papers, except that the only constant vehicle referred
to is a “
taxi
”.
17.7 The plaintiff conceded that the vehicles were
for personal and business use by the deceased and that before
the
alleged cohabitation the deceased already had a taxi business. She
further stated that she was an employed nurse when she met
the
deceased.
17.8 The plaintiff testified that the taxis were
registered in the deceased’s name while the private vehicles
were registered in her name. It was put to the plaintiff that it is
highly unlikely that the vehicles were registered in her name
since
she failed to discover the registration documents to prove ownership.
17.9 The plaintiff was referred to her pleadings
and her evidence in chief regarding both parties allegedly pooling
their resources equally and opening three bank accounts. In the
plaintiff’s reply to the defendant’s request for further
particulars, the plaintiff stated that the accounts were opened
during the universal partnership, but she could not remember the
dates. She said the source of the funds were from the taxi industry,
her own salary and bonuses and were applied in all three bank
accounts.
17.10 It was pointed out to the plaintiff that the investment
account with account number [….] was opened on 22 August
2008
as stated by the investment confirmation (that the plaintiff herself
discovered in her own discovered documents) in the name
of the
deceased. It was put to the plaintiff that if they had pooled their
resources equally as alleged she would have known the
date and seen
it from the confirmation of the bank. It was further put to her that
the account is in the name of the deceased and
she did not contribute
anything. The plaintiff became argumentative at this point.
17.11 When the plaintiff was confronted with FNB Silver Cheque
Account with account number 518 120 230 95, she
conceded
that the account is in the deceased’s name. She further
conceded that when she made a deposit into an account she
used either
her name or surname. It was pointed out to the plaintiff that her
three deposits amount to a mere R8,500.00 out of
the total of
R40,829.49 in that specific account. The plaintiff admitted this
fact.
17.12 One of the three deposits was made only after the
deceased passed away and another on the day the deceased passed.
Only
one small deposit of R3,000.00 was made by the plaintiff five days
before the deceased died.
17.13 In contrast, the deceased had made eight cash deposits
into that account totaling R22,000.00 into that specific account.
17.14 When the plaintiff was confronted with Money Market
Investment Account with account number 6212 593 7435 she admitted
that the account is in the deceased’s name and that only two
amounts of R1,000.00 each were deposited into it.
17.15 It was put to the plaintiff that having cohabited with
the deceased for thirteen years, she only presented bank statements
for four months of the three accounts and to which she only
contributed R8,500.00 to one of the accounts and nothing to the other
two accounts. It was further put to the plaintiff that she is not
entitled to claim a universal partnership. At best she has a
small
claim for enrichment. The plaintiff responded by being rather
argumentative.
17.16 The plaintiff said she looked after the deceased when he
was ill because she loved him. If you love someone, you buy
him or
her gifts, food, clothing, accommodation and pay for their education.
It was put to the plaintiff that this evidence of
hers is that of a
love relationship and not a universal partnership.
17.17 The plaintiff testified that she was employed as a
registered nurse during her cohabitation with the deceased. She
had
her own bank account and used her salary to maintain herself and her
child after the deceased passed away.
17.18 The plaintiff testified that before she cohabited with
the deceased, she knew nothing of the taxi business and the
deceased
explained and taught it to her.
17.19 It was put to the plaintiff that she occasionally
accompanied the deceased on trips to repair the taxis and
occasionally
brought spares home as a favour. That she attended
social functions with the deceased is what people do that are in a
love relationship.
The plaintiff responded by stating: “
That
is not true, that is the
‘
skill’
that I brought into the partnership.”
17.20 The plaintiff acknowledged that her vehicle tracker from
Altech Netstar was paid for by the deceased and it is in the
deceased’s name.
[18]
Under re-examination she said: ‘
The aim of the partnership
was for the
mutual benefit
of us.
’
M[....]
K[....]’s (Plaintiff’s daughter’s) evidence
[19]
Ms K[....] testified during evidence in chief that:
19.1 she was born in 1997 and the deceased was her
father;
19.2 she resided at [….] and grew up in the
house with her mother and her father (the deceased). The plaintiff
and the deceased co-parented well;
19.3 her mother (the plaintiff) and the deceased
attended social gatherings together and at family functions
of the
deceased, she (M[....] K[....]) was accepted;
19.4 she grew up in a home were her mother (the
plaintiff) and the deceased loved each other and her mother (the
plaintiff) helped the deceased count his money and advised the
deceased on his financial affairs;
19.5 when they went out and she wanted clothes, the
deceased would pay for them.
[20]
The following emanated during cross examination:
20.1 The witness admitted only being 11 years of
age at the time the deceased passed away and only lived a child’s
life, attending school, doing homework and playing with friends.
20.2 It was put to the witness that she did not
have the knowledge of what assets belonged to whom during those
11
years and she cannot speak regarding the parties’ intention
with regards to an alleged universal partnership. The witness
answered that she grew up in a happy home and that her mother and the
deceased loved each other.
Motoko
Modiba’s evidence (taxi operator)
[21]
Mr. Modiba testified as follows during evidence in chief:
21.1 He worked as a taxi operator (driver) since
1992 for the deceased at the [….];
21.2 He would tell the plaintiff if there was a
problem relating to running the taxis and the plaintiff and the
deceased would sort out the problem.
21.3 At the end of the day of working as a taxi
operator, he would give the deceased or the plaintiff the earnings
of
that day depending on who was found at the house on that specific
day.
21.4 The plaintiff attended social functions with
the deceased.
21.5 The plaintiff paid for the funeral of the
deceased.
[22]
The following emanated during cross examination:
22.1 When the witness started working for the
deceased, the taxi business was run by the deceased alone.
22.2 He conceded that his driving instructions came
from the deceased, that he reported to the deceased, that
the
deceased paid his salary and that the deceased was his employer.
22.3 The witness stated that the deceased attended
the taxi association meetings and that anybody could attend
these
meetings including drivers, family, children etc. He stated that
after the taxi meeting there was a social meeting where
the people
would relax and enjoy the evening, which the plaintiff attended.
The
defendant’s case
[23]
The defendant herself, Mrs. Agnus Novela (the deceased’s
cousin) and Mr. Michael Mangena
(secretary of the [….])
testified for the defence.
The
defendant’s evidence:
[24]
The defendant testified as follows during evidence in chief:
24.1 She was born in the year
1959 and the deceased in the year 1955.
24.2 She got married in 1981 to
the deceased. She gave consent to
be married. The marriage was discussed between the elders. R400.00
lobola was paid by the deceased to marry her. They had a celebration,
a sheep was slaughtered, and she was handed over as the bride to the
deceased and the people were festive and danced.
24.3 After the wedding, she and the deceased lived
in Oukasie while applying for land in 1985. The land is situated
at
[….]. On the application for land form, next to the word
“
vrou
”, her details are provided and it was signed
by the deceased.
24.4 She and the deceased built a six room house
and a double garage on the land acquired. The double garage
was used
for the taxis.
24.5 She herself made the bricks using a specific
form, for the house to be built (she described them as “mampara
bricks”). Her income and the deceased’s earnings were
used to build the house.
24.6 She and the deceased resided in the house
after they built it. It was a complete, fully furnished house.
It had
ceilings, chairs, beds, cutlery and crockery.
24.7 She had a canteen and contributed her income
each month to the deceased’s taxi business that started
in the
early 1980s.
24.8 The first vehicle that the deceased bought
when he and the defendant had saved enough money was a kombi
(taxi).
After that purchase they acquired other vehicles as well.
24.9 She resided with the deceased as husband and
wife for twelve years until 1993. The deceased took her to
Majukane
saying she should run a store there. When she left, she did not take
anything from their house with her. She then lived
in Majukane, until
the deceased passed away in 2008.
24.10 There were no children born of the marriage.
24.11 The defendant currently lives in the house at [….]
that she and the deceased built. She moved back in the year
2015 and
upon re-arrival she found the same property (furniture, chairs,
bedding, cutlery and crockery) that she put in the house
originally.
24.12 The deceased never asked her for a divorce. She
registered their customary union marriage after the deceased died to
obtain his surname. The brother of the deceased and their family
accompanied her when the registration took place.
[25]
Cross examination was short. The only material aspect was that the
doctors that tested the deceased
and the defendant regarding
conceiving of biological children were both medical doctors and
traditional doctors.
Agnus
Novela’s evidence:
[26]
Mrs. Novela testified that the deceased is her aunt’s son and
they grew up in the same
house and were very close to one another. In
essence, she confirmed the evidence of the defendant that she
(defendant) was married
by customary rites to the deceased; and that
they resided in a shack while they were building the house at [….]
and that
the defendant currently resides there. She testified further
that the defendant had herself made the bricks used to build the
house
which was large and had six rooms. The defendant and the
deceased had furnished the house which included a TV, sofa, beds,
steel
cupboards, a fridge and so on. Mrs Novela testified that she
regularly visited the defendant and the deceased twice a week as she
lived nearby. She said the deceased was a taxi owner. The defendant
was a food vendor who would give her income to the deceased
each
month. When defendant left the house, she took nothing with her. She
left a fully furnished house.
[27]
Mrs. Novela further testified that after the defendant left in 1993
she (Mrs. Novela) continued
visiting the deceased as they were close
to each other. On each of these visits she found the deceased alone
there. She said after
1993 a double garage was built for the
deceased’s taxis.
[28]
Although she did not know the plaintiff she claimed that the deceased
did not contribute anything
to the plaintiff.
[29]
She attended the funeral of the deceased together with the M[....]
family but did not see the plaintiff’s
family there as she did
not know them.
[30]
Mrs. Novela stated that the deceased’s family contributed
towards the funeral costs of
the deceased and the taxi association
contributed R20,000.00 while the plaintiff did not contribute any
amount.
[31]
Under cross examination she denied any knowledge of the deceased’s
family accepting the
child M[....] as daughter of the deceased and
said she did not even know the child. She was also asked if she had
told defendant’s
attorneys that she used to visit the deceased
twice weekly. She said she did. Asked why this was not put to the
plaintiff she said
she did not know. She said the plaintiff was lying
if she said she lived with the deceased from 1995 up to the time of
his death.
She said the plaintiff was not honest about her alleged
contribution to the deceased’s business.
Mr.
Michael Mangena’s evidence
[32]
Mr. Michael Mangena testified and confirmed the defendant’s
testimony that she and the
deceased had built the house at [….]
and he was living two houses away at house number 534. He said the
defendant made the
bricks used to build the house which and it was
well furnished. He knew there was cutlery and crockery in the home as
the deceased
would serve him and others food and drinks. Mr. Mangena
also testified that the deceased had a taxi business prior to 1993.
He
himself is a taxi owner and is one of the founders, together with
the deceased, of the [….] and is currently its secretary.
He
said he knows the plaintiff. She was the deceased’s girlfriend.
He denied that the plaintiff ever attended the taxi association’s
meetings or any social gatherings as the association did not host
such gatherings. He further testified that the taxi association
contributed R20,000.00 towards the deceased’s funeral.
[33]
Under cross examination he testified that the plaintiff did live with
the deceased at [….]
but could not recall when she moved in
with him. He said the deceased had a number of girlfriends.
Questioned about the alleged
contribution of R20,000.00 by the taxi
association towards the deceased’s funeral costs he said
because the constitution
of the association provides for it, it must
have been paid. He does not know to whom as he was incarcerated at
the time.
[34]
The witness was referred to an application form completed by the
deceased for membership of SANTACO
(South African National Taxi
Council)
[8]
where the deceased states that the plaintiff is his spouse. The form
is dated 9 March 2005. The witness responded that he was still
of the
view that plaintiff was only the deceased’s girlfriend. All he
knew was that the defendant was the deceased’s
wife.
[35]
Under further cross examination he said he could not dispute that the
plaintiff lived with the
deceased until he died. He said the house
had been completed when plaintiff came to live there. He was not in a
position to dispute
that plaintiff financially contributed to the
deceased. He was aware of the second structure on the property but
was not able to
testify as to who contributed to the building of it.
Discussion
[36]
The plaintiff’s evidence raises a number of questions about her
credibility. Whilst under
cross examination she testified that she
allegedly instructed her attorney to amend her pleadings after the
summons was served
to read that “
they pooled their
respective resources equally
”, “
a biological child
of the deceased
” and a whole new paragraph containing the
alleged terms in paragraph 7 (7.1 to 7.5) of the universal
partnership.
[37]
She insisted on her version, even when confronted with
improbabilities such as:
37.1 All household goods and furniture was bought
subsequent to 1995 and that before she moved into the house
the
deceased had no crockery or cutlery, no chairs to sit on and no table
to sit at.
37.2 The vehicles that the plaintiff testified
about in evidence in chief differ from the vehicles that are pleaded
on the papers except that the only constant reference to a vehicle is
the term “
taxi
”.
37.3 In a period of 13 years of cohabitation she
only presented four months of bank statements of three bank
accounts
to which she only contributed an amount of R8,500.00 out of the
R40,829.49 to one of the accounts. There is no evidence
of any other
amount contributed by the plaintiff to any of the three accounts. The
evidence then is that the plaintiff contributed
only R8,500.00 out of
the total of R401,533.35 of the three accounts discovered by herself.
The deposits by the plaintiff were
made after the deceased passed
away; on the day of his death; and the remaining deposit five days
before his death.
37.4 All the bank accounts and taxis were
registered in the deceased’s name.
37.5 Liaising with taxi drivers while being in full
time employment as a registered nurse seems improbable –
more
so as she testified that the nurses were not allowed to have their
phones whilst on duty.
37.6 During her employment as a registered nurse
she had the time to do daily money checking of the taxi business
and
bank same. Mr Modiba testified that the deceased was his employer,
paid his salary, he reported to the deceased and after a
day of
driving he would give the days’ earnings to either the deceased
or the plaintiff. It depended on who he found at the
house.
37.7 When questioned regarding the taxi business,
she answered – ‘
The taxis was a partnership to make a
PROFIT for both of us.’
When it was put to the plaintiff
that the occasional help she offered the deceased was because of the
love relationship, she answered
‘
That is the SKILL that I
brought into the partnership.’
Asked about the aim of the
partnership, she answered – ‘
The aim of the
partnership was for the MUTUAL benefit of us.’
[38]
The use of the exact wording of three of the requirements of a
universal partnership as stated
by Pothier raises concern. A witness
will testify to the facts and not legal conclusions as was apparent
from the evidence of the
plaintiff.
[39]
One cannot but be concerned whether the plaintiff was coached. She
was an inflexible, defensive
and at times argumentative witness.
[40]
I find defendant to be a credible witness. She was candid and, in my
view, truthful insofar as
her relationship with the deceased was
concerned and that she and the deceased built and furnished the
house. She did not extend
her version beyond the realm of her
experience in relation to certain time periods when the plaintiff
allegedly cohabited with
the deceased, when she could easily have
tailored her evidence in this regard.
[41]
The evidence of Ms. M[....] K[....] (the plaintiff’s child who
was 11 years old in 2008
when the deceased passed away) was not of
any material assistance to the court on the core issue of whether
there was a universal
partnership between the plaintiff and the
deceased.
[42]
Mr. Motoko Modiba’s evidence in chief was that the plaintiff
attended social functions
with the deceased and that she paid for the
funeral of the deceased. Again, this does not assist the plaintiff.
Under cross examination
he said his instructions relating to the
driving of the taxis were from the deceased to whom he reported. The
deceased was his
employer who paid him his salary. This evidence does
not support the plaintiff’s claim.
[42]
The evidence of the defendant’s witness Mrs. Agnus Novela I
find credible insofar as it
related to the circumstances surrounding
the building of the main house is concerned. She also testified that
she regularly (twice
a week) visited the deceased and could confirm
that the house was furnished by the defendant and the deceased.
Counsel for the
plaintiff asked her whether she had mentioned this to
defendant’s legal representatives as it was not put to any of
the plaintiff’s
witnesses. She replied she had informed them
and cannot say why it was not put to plaintiff and her witnesses. I
do not think this
omission detracts from her evidence that she was
the deceased’s cousin and that she regularly visited him as she
lived nearby.
However, she did not explain how she could say with
certainty that the deceased did not contribute anything towards the
plaintiff.
She also did not elaborate on how she knew that the
plaintiff did not contribute towards the deceased’s funeral
costs. I
am of the view that these issues are not materially germane
to the question whether there was a universal partnership between the
plaintiff and the deceased.
[43]
Mr. Michael Mangena (as did Mrs. Novela) testified that the defendant
had made the bricks used
to build the house. The plaintiff does not
deny this. Her evidence was that the ceiling was not inserted and it
was she and the
deceased who did so. When considering the totality of
the evidence, I am not convinced that plaintiff contributed at all to
the
building of the house. But even if she did it does not add much
weight to her allegation of a universal partnership when considered
in the light of the other issues I have referred to earlier.
[44]
Mr. Mangena’s categorical statement in evidence in chief that
the Lethlabile Taxi Association
contributed R20,000.00 towards the
funeral costs of the deceased turned out under cross examination to
be mere speculation on his
part. He also said he could not dispute
that plaintiff financially contributed to the deceased.
[45]
It is so that in the SANTACO application form the deceased stated
that the plaintiff was his
spouse. Again, that is not helpful in the
context of the totality of the evidence.
[46]
In my view, there are a number of reasons to doubt the reliability of
the version of the plaintiff.
She was unable to explain
inconsistencies such as averring that she and the deceased “pooled
their resources equally”,
but that all the taxis are registered
in the deceased’s name, all the bank accounts are in the
deceased’s name. She
made a rather small deposit of R8,500.00
out of the total of R401,533.35 of the three discovered bank accounts
by herself and that
too a few days before he passed away, on the day
of his death and agsin very shortly thereafter. All household goods
and furniture
was bought after the year 1995 which would mean that
the deceased had no household goods or furniture for a number of
years before
that. That seems highly improbable.
[47]
The question ultimately comes down to whether it is probable that the
plaintiff and the deceased
indeed pooled their resources equally in
an alleged universal partnership and thus entitling her to an equal
share in it.
[48]
I conclude that the plaintiff’s version, both as pleaded and
testified to, is highly improbable
in the circumstances. The most
probable explanation is that the plaintiff was the deceased’s
girlfriend and nothing more.
[49]
In terms of the Recognition of Customary Marriages Act, the marriage
between the deceased and
the plaintiff is a valid marriage at
customary law and existed at the commencement of the Act. Both the
deceased and the defendant
were above the age of eighteen, there was
consent by both parties, the marriage was discussed by the elders,
lobola was paid, a
sheep was slaughtered, the defendant was handed
over as the bride to the deceased and there was a celebration and the
people danced
at the wedding. Thus a valid customary marriage was
concluded between the deceased and the defendant in the year 1981.
[50]
The customary marriage between the deceased and the defendant was
registered after the death
of the deceased. The legislation is clear
on that aspect in that failure to register a customary marriage does
not affect the validity
of that marriage. The customary marriage
between the deceased and the defendant was not dissolved by a court
by decree of divorce,
therefore the deceased and the defendant were
lawfully married until the day of the deceased’s death.
Conclusion
[51]
I find that the plaintiff has failed to discharge the onus of proof
on a balance of probabilities
and accordingly dismiss her claim
against the defendant with costs.
RANCHOD, J
JUDGE OF THE HIGH COURT
Appearances:
Appearance
for plaintiff:
Adv WJ Saaiman
Instructed by Moshate More Attorneys
c/o P More Attorneys
883 Church Street
Arcadia
Pretoria
Appearance
for defendant:
Adv G Kasselman
JW Wessels & Partners Inc.
811 Francis Baard Street
Arcadia
Pretoria
[1]
Nationale Aartappel Kooperasie Bpk v Price
Waterhouse Coopers Ing
2001 (2) SA 790
(T) at 798.
[2]
Imprefed (Pty) Ltd v National Transport
Commission
1993 (3) SA 94
(A) at 107.
[3]
Sterling Consumer Products v Cohen and Other
Related Cases
[2000] 4 All SA 221
(W)
at 227 para [11].
[4]
Particulars of claim, at para 4.
[5]
Para 5 of particulars of claim.
[6]
Para 6 of particulars of claim.
[7]
Para 7 of particulars of claim.
[8]
Caselines bundle 0012-13 – plaintiff’s discovered
documents.