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[2021] ZAGPPHC 212
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D[....] v B[....] and Others (23664/2017) [2021] ZAGPPHC 212 (30 March 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE: NO
(2)
OF INTEREST TO
OTHER JUDGES: NO
(3)
REVISED.
CASE
NO: 23664/2017
In
the matter between:
L[....]
D[….]
Plaintiff
and
G[....]
V[....] O[....] B[....]
First
Defendant
BULCON
CONSTRUCTION CC
Second
Defendant
NATURE
HEIGHTS PROPERTIES CC
Third
Defendant
KAREEBOOM
PROPERTIES CC
Fourth
Defendant
BIG
D BUMPERS
CC
Fifth
Defendant
RIDER
FORKLIFT BUMPERS CC
Sixth
Defendant
JOINTSHELF
1187
CC
Seventh
Defendant
TRIBAL
ZONE TRADING 678 CC
Eighth
Defendant
LAGOON
BEACH (PTY) LTD
Ninth
Defendant
CHISLETON
(PTY)
LTD
Tenth
Defendant
KYALAMI
BURN (PTY)
LTD
Eleventh
Defendant
TABAC
(PTY) LTD
Twelfth
Defendant
B[....]
FAMILY TRUST
Thirteenth
Defendant
B[....]
V[....] O[....] B[....]
(In
his capacity as trustee of the
B[....]
Family Trust)
Fourteenth Defendant
J U D G M E N T
The judgment and order are accordingly published and
distributed electronically. The date and time of hand down is
deemed
to be 10:00 on 30 March 2021.
TEFFO, J
:
Introduction
[1]
The plaintiff instituted
an action against the defendants in terms of which she claims,
inter
alia
, a declaratory
order that a universal partnership existed between her and the first
defendant in respect of the defendants’
businesses, assets and
investments and a division of the assets of the partnership in equal
shares. In the alternative, she claims
that the defendants were
unduly enriched to her detriment. That she is entitled to 50% of the
net value of the first defendant
and the remaining defendants’
entities, being the amount by which they have been unduly enriched.
She also claims additional
relief as outlined in her particulars of
claim.
[2]
The defendants deny
the existence of the universal partnership between the plaintiff and
the first defendant.
The parties
[3]
The plaintiff is Ms
L[....] d[….]. It will be appropriate for the sake of
these proceedings to refer to her as Ms D[....].
The first defendant
is Mr G[....] V[....] O[....] B[....]. He will be referred to
separately as Mr B[....]. The second
to the twelfth defendants
are the business entities, either close corporations or companies of
the first defendant. They
will also be referred to by name as
Bulcon Construction CC (“
Bulcon
”),
Nature Heights Properties CC (“
Nature
Heights
”);
Kareeboom Properties CC (“
Kareeboom
”);
Big D Bumpers CC (“
Big
D
”); Rider
Forklift Bumpers CC (“
Rider
”);
Jointshelf 1187 CC (“
Jointshelf
”);
Tribal Zone Trading 678 CC (“
Tribal
Zone
”); Lagoon
Beach (Pty) Ltd (“
Lagoon
Beach
”);
Chisleton (Pty) Ltd (“
Chisleton
”);
Kyalami Burn (Pty) Ltd (“
Kyalami
”)
and Tabac (Pty) Ltd (“
Tabac
”).
The thirteenth defendant is the B[....] Family Trust. It will be
referred to separately as the “
Family
Trust
”).
The fourteenth defendant is Mr G[....] V[....] O[....] B[....] in his
capacity as the Trustee of the B[....] Family
Trust. He will be
referred to separately as the Trustee of the Family Trust. Where
appropriate the defendants will be referred
to collectively as the
defendants.
The
pleadings
[4]
In her particulars of the
claim, the plaintiff alleges that she and the first defendant met in
the year 2000. They became
romantically involved. In 2005
they moved together under the same roof. They lived together in
a relationship akin
to husband and wife from 2005 to June 2016.
[5]
In or around June 2005,
she and the first defendant decided and agreed that she would reject
a lucrative full-time position with
global consulting and
construction firm Arup, and instead join the first defendant with
both parties to,
inter
alia
:
5.1 build up existing businesses
for profit;
5.2 create and run new business
ventures for profit; and
5.3
to jointly accumulate assets, for
the joint benefit and reward of her
and the first defendant.
[6]
As a result, and in
Johannesburg, she and the first defendant, whilst acting personally,
orally, explicitly, alternatively tacit,
alternatively by
implication, further alternatively through conduct agreed that:
6.1
A partnership be formed and that
the partnership businesses would be
conducted initially from 11 Bushwillow Street, Fourways, Gauteng.
6.2
She and the first defendant would
contribute their time, expertise,
labour and capital to the partnership.
6.3
They intended for the partnership
to make profit, acquire assets and
income, and to be for their joint benefit.
6.4
The partnership would utilise,
inter alia
, the names and
assets in the names of either or both she and the first defendant,
trusts, companies and/or close corporations,
to conduct the
partnership and to accumulate assets in such names and/or entities in
an attempt to,
inter alia
, protect and grow assets, including
protecting such assets against claims from creditors.
6.5
The partnership assets held by the
partnership in her names, the
first defendant, or by the trusts or companies and close corporations
and the net profits and net
losses shall upon termination of the
partnership be divided equally between her and the first defendant.
6.6
Her assets and those of the first
defendant, the trusts, the
companies and the close corporations would be regarded as assets of
the partnership.
[7]
She made business and
domestic related contributions to the partnership.
[8]
The partnership was
terminated on or about 1 July 2016.
[9]
She and the first
defendant shall, upon termination of the said partnership, each be
entitled to half of the assets, held by the
partnership or her or the
first defendant or any of the aforementioned company(ies) and close
corporation(s), and/or the trust,
the net profits or be liable for
the net losses. In the alternative, she pleads that the
contributions that she and the first
defendant made to the said
partnership in respect of the assets and/or income and/or labour, are
not capable of being ascertained
with precision. She and the
first defendant are entitled to a distribution of the assets of the
partnership in equal shares
after termination of the said
partnership.
[10]
In their plea, the
defendants raised the following points
in
limine
:
10.1
Non-joinder
.
That the plaintiff has failed to site all the trustees of the
thirteenth defendant in their respective capacities as such
and that
the thirteenth defendant is thus not before court.
10.2
Proceedings against
non-entities
. That the
eighth to the twelfth defendants are entities no longer in existence.
The entities were finally deregistered prior
to the institution of
the action. The defendants seek an order for the dismissal of
any claim against the eighth to the thirteenth
defendants with costs.
[11]
With regards to the
merits, the defendants pleaded as follows to the plaintiff’s
particulars of claim:
11.1
They admit that the plaintiff and the first
defendant entered into a
romantic relationship in terms of which they cohabited at the
plaintiff’s residence. The rest of
the allegations have been
denied.
11.2
It is contended that the plaintiff was at all material
times
qualified as a typist. She was employed by the first,
alternatively, the second defendant and she was remunerated.
11.3
The defendants deny an agreement for a partnership
of any kind
between the plaintiff and the first defendant.
11.4
They also deny any contribution as alleged
or otherwise to the
alleged partnership.
11.5
The defendants further contend that while the
first defendant was in
the United States of America (USA) receiving cancer treatment, the
plaintiff vacated the co-habited residence
of the first defendant.
In doing so, she unlawfully and intentionally appropriated household
corporeal property belonging
to the first defendant with the
intention of permanently depriving the first defendant thereof.
The value of the property
misappropriated by the plaintiff is R750
000,00. Her actions were
mala fide.
[12]
The first defendant also
filed a counterclaim against the plaintiff whereby he claims payment
from the plaintiff in the amount of
R750 000,00.
[13]
The plaintiff denies the
allegations made in the first defendant’s counterclaim.
Non-joinder
of the trustees of the Family Trust
[14] The defendants contend that the plaintiff has failed
to site all the trustees of the thirteenth defendant in their
respective capacities as such and that the thirteenth defendant is
thus not before court.
[15]
The Supreme Court of Appeal in
Tusk
Construction Support Services (Pty) Ltd and Another v Independent
Development Trust
[1]
referred with approval to the matter of
Hyde
Construction CC v The Deuchar Family Trust and Another
[2014] ZAWCHC 118
;
2015 (5) SA 388
(WCC) where the full court of the
Western Cape Division of the High Court was called upon to determine,
amongst other things, whether
the Deuchar Family Trust which had sued
in its own name was properly before the court as a litigant. At para
47 of the judgment,
after analysing several judgments of our courts
dealing with the legal standing of a trust, Rogers J, writing for a
unanimous court,
had this to say:
“[T]
he applicant was cited as the Deuchar Family Trust. Of
course, a trust is not a juristic entity. Whether it is
procedurally
acceptable to cite a trust by name as a litigant, and
whether in that regard rule 14 is applicable to trusts (as to which,
see
Cupido v Kings Lodge Hotel
1999 (4) SA 257
(E) at 265B-C), need
not be decided, because no objection was ever taken in the court a
quo or for that matter on appeal to this
mode of citation. One
commonly refers to a trust by name even though it is not a juristic
entity. Given the legal character
of a trust, the citation of a
trust by name in litigation must, I think, be understood as a
reference to the trustees for the time
being of the trust, whoever
they may be.
”
[16] The Supreme Court of Appeal further had this to say:
“
I
fully endorse that observation. To the extent that it can be said to
be a departure from existing authority, it is appropriate
that our
law of trusts, as it has been evolving over the years, is developed
along these lines.
”
[2]
[17] The SCA went on to say:
“
At
the hearing of this appeal counsel for IDT was asked as to what would
have happened if the belated point relating to IDT’s
status as
a defendant had not been raised. And whether in those circumstances
it would have been open to IDT to impugn the validity
of the ensuing
judgment purely because IDT lacked legal personality.
Understandably so, counsel did not embrace such a proposition.
The
reason therefore is not far to seek. It is so because where a trust
has been cited in its name (in line with the burgeoning
trend
mentioned earlier) such citation is generally understood as a
reference to the trustees. This is, however, not to say that
a trust
as such is possessed of legal personality. It does not, but remains
‘a legal institution sui generis’. Consequently,
a
trust’s citation as such in legal proceedings does no more than
take cognisance of its existence as a legal institution
sui
generis.
”
[3]
[18] Having regard to the above case law I
conclude that with the evolution and development of our law
of trust
over the years, there can be no doubt that the citation of a trust by
name in litigation must be understood as a reference
to the trustees.
It cannot therefore be correct to say that the failure by the
plaintiff to cite all the trustees of the thirteenth
defendant in
their respective capacities means that the thirteenth defendant is
not properly before court. It follows that the
defendant’s
argument in this regard is bound to fail.
Proceedings
against non-entities
[19] The defendants contended in their plea that the
eighth to twelfth defendants are entities no longer in existence.
The
entities were finally deregistered prior to the institution of the
action. They sought an order for the dismissal of the claims
against
the eighth to the twelfth defendants with costs.
[20] The eighth to twelfth defendants
are non-existent entities. There can therefore be no costs
order in
their favour. It follows that the action against the eighth to the
twelfth defendant is dismissed with no order as to
costs.
The
evidence
[21] The plaintiff testified in support
of her case and did not call any witnesses. The first
defendant
also testified and further called witnesses in defence of the
defendant’s case.
[22] Ms D[....] testified that she met
Mr B[....] in January 2000. He was living in Fourways
and she
was staying in Alberton. Their relationship got very intimate.
She started to drive to Fourways on weekends.
This lasted for
approximately four years. Eventually she and Mr B[....] agreed
that she should come and reside with him in
Fourways. She moved in
with him in Bushwillow and rented out her flat in Alberton in 2005.
She subsequently acquired a job
at a company called Arup in Sandton
where she worked for a year.
[23] Mr B[....] then told her that it was too costly for
her to travel to Sandton. They discussed how much money
she was
spending when she travelled to Sandton and what she would make if she
worked for Mr B[....], what they would do together
and build the
empire they had in mind and then move to the USA. The intention
was for her to run Big D. They decided that
they were going to make
money through the bumpers to all other companies. Mr B[....] offered
her a job. At that time, she
was earning ± R18 000,00
per month at Arup.
[24] She ran Bulcon, Kareeboom, Big D, the family trust,
Tribal Zone Trading and Stone Mad. Stone Mad was not
a
registered entity. It was just a name they created. They used
other entities like Bulcon and Kareeboom trading as Stone
Mad.
At times other entities like Kareeboom would be used as Kareeboom
trading as B[....] Family Trust, trading as G[....]
B[....], trading
as L[....] D[....]. All these traded as Stone Mad. All
entities included her personal accounts and
Mr B[....]’s
personal accounts.
[25] From Bushwillow she and Mr B[....] moved from one
house to another residing and running businesses in buildings
which
were still under construction. The reason thereof was to save money
for their retirement in the USA.
[26] Bulcon catered for the building of the houses in
[….] in Fourways which she and Mr B[....] ran together.
She ran around getting materials like sand, stone, cement, tiling,
etc, while Mr B[....] remained on site with the foreman just
to see
that the buildings were on track. After the completion of the
houses, she and Mr B[....] would do house fittings together
in order
to sell them. House number [….] was bonded to
Kareeboom. No real work was going on through Kareeboom.
It was just there for the bond of House No 2048 Mirabel Crescent.
House No [….] was registered in the Family Trust.
She
assisted with the building of the house and also looked after the
tenants who rented the house. She did not mind doing
everything
for the Family Trust because at the end of the day all these was for
her and Mr B[....]. All the money went to
the Family Trust for
their retirement.
[27] House No [….] which was subsequently sold,
was registered in Kareeboom.
[28] Mr B[....] became ill. The building work
seized. Shortly thereafter they decided to move to
Alberton
where they opened up a stone yard called Stone Mad. It was
decided that she would run Stone Mad while Mr B[....]
was busy doing
renovations for tenants on the rented properties in Fourways.
Subsequent thereto they moved to Plettenberg where
they opened a
stone yard business. She was not sure of the dates of when this
happened. The stone yard was called Bulcon
trading as Out of Africa
Stone. This was not a registered entity. It was just a name. In the
same year, she travelled from Plettenberg
to Johannesburg every
second week to do Big D as well as look after the tenants who were in
house number [….] and Mr B[....]
remained in Plettenberg Bay.
This happened for approximately nine months.
[29] In 2011 Mr B[....] left for the USA.
On his return to South Africa they decided to leave Plettenberg
Bay
and returned to Johannesburg. In 2012 they rented a house in
Fourways for a year and half. They subsequently moved to
house [….]
where they resided until 1 July 2016.
[30] Bulcon was a building business but it traded as
either Out of Africa Stone or Stone Mad. When they started
the
stone business, they used the family trust to put money through that
name.
[31] At some stage, she could not tell the year,
she and Mr B[....] decided to have a little holiday home away
from
Johannesburg. They went to [….] to look at various
properties. They bought a site where house number [….]
was
built. This property was registered in the family trust. The
funds to build that house would come from either Out of
Africa Stone
or Stone Mad, the sales of the other houses in [….], the
rental and Big D.
[32] House numbers [….] were eventually sold and
house number […..] was still being rented. The house
in [….]
was completed and decorated. It was initially rented and at a later
stage they used it as a holiday home.
[33] She did not know about Nature Heights
until she did a windeed search on Mr B[....]’s name and
the
property came up. She does not have knowledge whether the entity is
active or not. Money could have gone into the entity
that she
would not have known of. The entity was registered. Joint Shelf was
used when they had the business Out of Africa Stone
and when Out of
Africa Stone had been sold Joint Shelf traded as Out of Africa.
She was not sure of any entity in that account.
The name Tribal Zone
trading as Out of Africa Stone was used in Plettenberg Bay. When they
returned to Johannesburg, the business
was left for somebody else to
run it. It was not sold. It eventually went insolvent.
[34] She did not know of the other entities, Lagoon
Beach, Chisleton, Kyalami and Tabac. She never had
any dealings
with them.
[35] In the year 2000 she had bought herself a flat
and a car. When she moved in with Mr B[....], he said they
needed
money in Bulcon. She sold her flat which had tenants at the time and
gave Mr B[....] the amount of R50 000,00 for the partnership.
The
flat still had a bond and the proceeds of the sale were about R70
000,00. She used the R20 000,00 to put herself through a
beauty
school course. She intended making extra money to go towards
household expenses. She never had time to do her beauty business.
[36] She had an Opel Astra which she traded
in for a 4x4 vehicle. This was done specifically to run
the
bumper business. The 4x4 was a bit difficult for her to drive.
They decided to trade it in and B[....] an Opel Corsa
for the bumper
business. The Opel Corsa was bought through Big D. When the
Opel Astra was sold, it was paid off. She could
have bought the Opel
Astra for ± R25 000,00 but she was not sure of the price.
The money was put as a deposit for
another vehicle (the 4x4).
The 4x4 was registered in her name. Sometime thereafter the Corsa
bakkie was traded in and a Pathfinder
was bought in Big D’s
name. She never received the proceeds of the sale of her flat.
She never asked for the return
of the proceeds of either the sale of
her flat and the Opel Astra. These were the contributions she
had made to build up
the entities and for her and Mr B[....]’s
retirement in America.
[37] She made another deposit of R50 000,00
into Kareeboom. This was the money that she received from her
ex-husband for medical aid. At that time, Kareeboom had a cash
flow problem. The money was also not refunded to her.
The
total amount she contributed to the partnership is R120 000,00.
[38] With regard to her labour contributions
to the partnership; in 2005 she was running the bumper business.
She
worked from home. When Mr B[....] came back home from the building
site, she would sit with him after hours and go through
what needed
to be done the next day. In 2008 when they moved to [….]
she would start working from 06:30. They had
to have things needed to
be done for the day completed to enable them to get to the building
sites for people to start working.
Throughout the day she would
be running around getting the building materials as well as doing the
bumpers one week a month
and this included a lot of travelling. She
worked until 21:30. She would arrive home at approximately 18:30 and
go to the office
(at home) where she would discuss the daily work
with Mr B[....]. She also ran the household. She would get up at
06:30 clean the
house and make breakfast. She and Mr B[....]
would have breakfast in the office and then start their day. In the
evening
when they were in the office, she would go and prepare supper
while Mr B[....] was making calls to his children in America.
[39] In 2014 Mr B[....] became sick and she
basically ran the businesses. She looked after him, cleaned him and
did what was necessary to make sure he was comfortable. He was
sick for a period of two years. He would go to the site but
not for a
long period. When he had cancer, he could not do anything. He
was homebound. The cancer was sorted and his retina
fell off his left
eye. For about eight months he could not attend to the businesses.
She had to run the stone yard business. She
drove Mr B[....] around
for about five months after he was homebound with cancer.
During the five months, she was running
Out of Africa Stone. Bulcon
had stopped building houses.
[40] With regard to Big D when she did the
Johannesburg area, she would normally leave the house at ±
6:30, go to Diepsloot and pick up two employees who assisted with the
bumpers. They would then proceed to various sites, find the
forklifts, assess them and see what needed to be repaired on them.
This would take the whole day per site. There were other
sites in
Northam in Thabazimbi and Rustenburg. When she went to Northam, she
left the house at 05:00. She would first go
to Rustenburg. She
would B[....] food for the employees she was working with and also
fill up the petrol using her personal credit
card. From Thabazimbi
she returned to Johannesburg at about 21:30 as she first had to drop
off the other employees in Diepsloot.
She also had other
clients in Pretoria, Johannesburg, Devland, Bedfordview and Alrode.
She would then sit on a Friday afternoon
and do the invoicing of all
those sites. She had signing powers on Big D and internet access. She
did all the sites over a week.
In 2009 Mr B[....]’s sister, Ms
Christine Martin took over the Big D business.
[41] She still continued to work at Big D. Ms
Martin lived in Pretoria. She ran the Pretoria part of the business
while the witness continued with the Johannesburg and Northam areas.
At the time she worked for Ms Martin, her allowance
went up to R8
000,00. Ms Martin gave back the business in 2011. She
never received a salary. The allowance that she
received was agreed
upon between her and Mr B[....] for her to cover some expenses.
She was not registered for tax. The allowance
was also used for
credit cards, B[....]ing materials, groceries, fuel and pay for her
policies, and pension. Mr B[....] also
did not receive a
salary. He took what he required to pay for credit cards,
bonds, water and lights. The entities were not
registered for VAT and
UIF.
[42] For three months she had to write down a
salary which would appear on her bank statement. She
and Mr
B[....] would make a letter of appointment and a payslip purely for
her to obtain a Visa and to show that she has a job
for her to come
back to South Africa after travelling abroad. They had to go to the
USA in order to find a house where they would
stay after retirement.
They found a house in West Palm Beach, Florida. They discussed
the changes they would make to
the house to accommodate her beauty
therapist business.
[43] Mr B[....] travelled to the USA every
six months in order to keep his American green card active.
When he
was away, she took full responsibility of all the businesses. He
would be away for a month.
[44] She had access to the accounts of Mr B[....],
Bulcon, Kareeboom, Big D and the Family Trust.
[45] At some stage her ex-husband gave her and Mr
B[....] a project for the value of more than R2 million. In
appreciation thereof, Mr B[....] bought her a Honda Ballade which was
registered in her name. She kept it for a year and
Mr B[....]
decided that they should sell it and B[....] a 4x4. The 4x4 was
then registered in Big D s’ name.
She has never received
the proceeds of the sale of the Honda. Eventually the 4x4 was sold
and the money was transferred to Mr B[....]’s
children in
America.
[46] After Mr B[....] got sick, they decided that they
would marry each other in 2015 and then relocate to the USA.
In
February 2016 Mr B[....] threw an engagement party for her.
They never got married. Mr B[....] started accusing
her of
stealing money from the entities. She started reflecting and looking
deeper into their relationship. Mr B[....] had told
her that he had
put her on his policies. She discovered that she was never put
on any of his policies but instead his ex-wife
was still on the
policies. She received an antenuptial contract. She read
through it and discovered that everything that
was there pertained to
Mr B[....]’s children and whatever related to her was the
amount of R100 000,00 that she had put into
the businesses.
[47] She told Mr B[....] that she was moving out of the
house on 1 July 2016. He asked her to reconsider. She
told him
that she would still move out but would continue working. She
had to B[....] herself a car from an inheritance she
received from
her parents. She did not have a car when Mr B[....] left for the USA.
While he was in the USA he asked her to pick
him up at the airport
when he returned to South Africa to discuss their relationship. She
hired a car to pick him up but met him
and gave him his credit card
and the house keys. She requested him to bring back all her
personal clothes that he had taken
to the USA. He did not.
A week after he had returned to South Africa, Mr B[....] phoned her
and threatened to shoot
her and her children.
[48] She was desperate and because of the threats
and being called a thief, she drafted a document she referred
to as
an acknowledgement of debt. In the document she asked for the
amount of R100 000,00 that she had put into the businesses
back. She
did not seek legal advice because she was in debt. She subsequently
met Mr B[....] at Mug and Bean where she requested
him to sign it.
They both agreed to go to the police station where they signed the
document. Nothing came out of the document.
[49] Reference was made to the salary advices of Mr
B[....] dated 28 February 2013, 31 May 2013 and 28 June 2013
respectively,
made out of Bulcon. She explained that those were made
up payslips in order for Mr B[....] to get vehicle finance where they
would
require proof of employment.
[50] She was never an employee of any of the businesses.
She and Mr B[....] were business partners.
[51] Under cross-examination she disagreed that she
earned a salary when she was working in the business entities.
She
was adamant that she never had UIF and that no tax was deducted from
the amount she received. She denied that she met
Mr B[....] in
2003. She testified that she met him in 2002. After
having been referred to the pleadings where it has
been alleged that
she met him on 29 January 2000, she testified that she met him in
2000. She conceded that she was never
listed on any of Mr
B[....]’s businesses. She denied that the West Palm Beach
property in the USA was purchased on or about
25 November 2004.
She testified that she travelled to the USA with Mr B[....] in 2005
to meet the seller. According to her
the purchase of the property in
the USA for their retirement was part of the partnership agreement.
It was put to her that according
to the pleadings, the oral
partnership agreement between her and Mr B[....] was concluded on 15
June 2005 and this was the day
they left to the USA. She
testified that she cannot recall the date she left South Africa to
the USA. She went to the
USA three times. Furthermore, that the
oral agreement was concluded in June 2005 and they left to the USA in
March 2005.
She was adamant that she had full authority to sign
on the bank accounts of Bulcon. She reiterated that she left
the shared
residence on 1 July 2016 and that this was the day she
alleged the partnership came to an end.
[52] She was further referred to a letter from her
erstwhile attorneys, Mr Schoeman, to Mr B[....] where it has
been
stated that she had been employed by him in various business entities
for a period of approximately 11 years and that he was
familiar with
the background details which gave rise to the termination of her
employment. She conceded that the letter refers
to her employment by
Mr B[....] in the various business entities but testified that she
was not happy with the contents of the
letter hence she eventually
terminated Mr Schoeman mandate to represent her. She conceded that Mr
B[....] was the sole member of
Big D.
[53] Reference was made to a sale agreement of the stone
business concluded between Mr B[....] and Ms Shepherd, and
it was put
to her that the fact the sale agreement was concluded by Mr B[....]
and Ms Shepherd is not supporting her version that
she and Mr B[....]
had a partnership agreement. She conceded that the sale agreement was
only concluded between Mr B[....] and
Ms Shepherd. She denied that
she was formally employed by Ms Shepherd. She testified that she was
with Ms Shepherd’s business
as part of the sale agreement to
ensure that she and Mr B[....] were paid the proceeds under the sale
agreement. It was put to
her that as a result of her formal
employment with Ms Shepherd, her relationship with her resulted in
her taking her to the CCMA
where she ultimately received an award
against her. She conceded that one can only get a CCMA award
against an employer.
[54] There were funds which were deposited into her
account with the reference of Shaun Richardson attorney which she
transferred to Mr B[....]’s children in the USA. She denied
that the transfer of the said funds had nothing to do with the
partnership between her and Mr B[....].
[55] An email conversation between her and
her ex-husband was read into the record. The salient portion
of the
email related to her explaining to her ex-husband that she was
employed at the stone business in Alberton and only earning
a basic
salary. She was cross examined about the email and she
testified that she did not want to get involved in the business
in
Alberton because she did not want to be shouted at by her ex-husband,
a boyfriend and her children.
[56] The day following the cross-examination about
the email between her and her ex-husband, she revisited that
evidence
and testified that she had been thinking about that evidence and the
reason she mentioned that she was an employee and
not a partner in
the stone yard business was because she and her ex-husband did not
see eye to eye. She did not want anything
to do with him. Mr
B[....] needed the funds to build up the company in Alberton. She
just said she wanted to be a silent partner
and work so that her
ex-husband, her son and Mr B[....] can be partners because she knew
that was going to disrupt the whole family.
[57] She conceded that the contents of the email she
wrote to her ex-husband was not correct.
[58] She was also shown another document dated 31 August
2017 confirming that Mr B[....] was the only person who had
authority
on the account of Kareeboom and she testified that she still had
internet access to the account.
[59] Reference was also made to the membership of Tribal
Zone and Lagoon Beach and she testified that the property
that was
registered in the name of Tribal Zone was handed back to the bank
after the death of the co-member of the CC. With regard
to Lagoon
Beach she testified that she only became aware of the other three
members/directors of the company when she did a windeed
search.
She alleged that these companies had been part of the partnership
because Mr B[....] was still active as a member
of the companies and
she did not know if money was moved to the companies’
accounts. It was put to her that according
to her evidence she
had signing powers, she did all the payments and had access to all
the bank accounts of all the entities. She
was asked as to how could
she have not been aware of the membership in all the entities. She
testified that Mr B[....] had ways
of putting money away without
people knowing. She referred to the USA account that was picked
up which did not appear in
any of his bank statements.
[60] It was put to her that on her own version she
was hoping that she would be put on the family trust that
she would
have known fully well that the entitlements flowing from it, can in
no way benefit her. She replied that the family trust
was used as a
close corporation (CC). It traded as Stone Mad. She had
every right to have money put into the Trust.
She worked for 11
years building the business of the Trust. Mr B[....] never
consulted with the children regarding whether
or not they could use
the account of the family trust. She and Mr B[....] just did
what they did as partners.
[61] She testified that it was necessary for her to
have signing powers on the entities’ accounts to document
part
of the partnership. Further that it was typical of her to use Mr
B[....]’s signature in his absence.
[62] While trading as Stone Maiden, monies were paid into
her private account which were not supposed to. She
testified
that she did not appropriate them for herself. Reference was made to
her bank statement and she explained that the monies
were paid back
into the account of Kareeboom on 8 July 2016.
[63] As against what was put to her that
according to a letter from Arup, she worked there for three and
a
half months for R75,00 an hour, she testified after referring to her
Curriculum Vitae that the position she held at Arup was
for six
months between June 2004 to June 2006.
[64] She further explained that she stated on
the CV that in the period July 2005 to July 2016, she was
an Office
Assistant/PA at Bulcon Construction …, because at the time she
prepared the CV, she was looking for a secretarial
position.
[65] Ms D[....] then closed her case.
[66] Mr Morland on behalf of the defendants moved an
application for absolution from the instance at the close of the
plaintiff’s case. He also informed the court that Mr
B[....] withdraws the counterclaim only for the purposes of the
application for absolution from the instance. The application was
opposed.
[67] The basis of the application for absolution
from the instance was that on Ms D[....]’s version, she
entered
into a settlement agreement with Mr B[....]. The issues between
them have become settled. She cannot after
settlement of the
issues between them come to court and claim the existence of a
partnership between them. A submission was
also made that Ms
D[....]’s evidence is not consistent with her pleadings.
Mr Wijnbeeck disagreed.
The
law
[68]
The test to apply in an application for absolution from the instance
at the close of the plaintiff’s case
was set out in
Gordon
Lloyd Page & Associates v Rivera and Another
[4]
by Harmse J as follows:
“
[2] The test for
absolution to be applied by a trial court at the end of the
plaintiff’s
case was formulated in Claude Neon Lights (SA) Ltd
v Daniel
1976 (4) SA 403
(A) at 409G-H in these terms:
‘…
When
absolution from the instance is sought at the close of the
plaintiff’s case, the test to be applied is not whether the
evidence led by the plaintiff establishes what would finally be
required to be established, but whether there is evidence upon
which
a court, applying its mind reasonably to such evidence, could or
might (not should, nor ought to) find for the plaintiff.
(Gascoyne v Paul and Hunter,
1917 T.P.D. 170
at p. 173; Ruto Flour
Mills (Pty) Ltd v Adelson (2),
1958 (4) SA 307
(T).) The
plaintiff has to make out a prima facie case in the sense that there
is evidence relating to all the elements of
the claim.
’”
[69]
This implies that a plaintiff has to make out a
prima
facie
case – in
the sense that there is evidence relating to all the elements of the
claim – to survive absolution because
without such evidence no
court could find for the plaintiff.
[5]
As far as inferences from the evidence are concerned, the inference
relied upon by the plaintiff must be a reasonable one,
not the only
reasonable one (
Schmidt
at 93). The test has from time to time been formulated in
different terms. It has been said that the court must consider
whether there is “
evidence
upon which a reasonable man might find for the plaintiff
”
(
Gascoyne (10C cit
))
– a test which had its origin in jury trials when “
the
reasonable man
”
was a reasonable member of the jury (
Ruto
Flour Mills
). Such a
formulation tends to cloud the issue. The court ought not to be
concerned with what someone else might think; it should
rather be
concerned with its own judgment and not that of another “
reasonable
”
person or court. Having said this, absolution at the end of the
plaintiff’s case, in the ordinary course of
events, will
nevertheless be granted sparingly but when the occasion arises, a
court should order it in the interest of justice.
[70]
Hattingh J found that the test to be applied in determining the
question whether the defendant’s
application for absolution
from the instance should be granted is not whether the adduced
evidence required an answer, but whether
such evidence held the
possibility of a finding for the plaintiff, or put differently,
whether a reasonable court can find in favour
of the plaintiff.
Consequently, at the absolution stage the plaintiff’s evidence
should hold a reasonable possibility of
success for him, and should
the court be uncertain whether the plaintiff’s evidence has
satisfied this test, absolution ought
to be refused.
[6]
[71] Mr Morland submitted that the settlement
agreement between Ms D[....] and Mr B[....] settled the issues
between them. Further that a court cannot reasonably find on the
evidence before it that there is anything for the defendants to
answer.
[72] Mr Wijnbeeck for the plaintiff submitted
that Ms D[....] introduced a document she referred to as
an
Acknowledgement of Debt “
AOD
”. Her evidence
was that at the time of drafting the document, she was desperate for
money and without legal advice.
The document was according to
her, a device to bring an end to the interactions between her and Mr
B[....] which relationship was
acrimonious at the time. She and
Mr B[....] signed the AOD. However, nothing came out of it. It
was never given effect
thereto. This evidence was never challenged.
It was never put to Ms D[....] that the AOD has put an end to her
claims against the
defendants. It was further not pleaded that
the AOD has put an end to Ms D[....]’s claims.
[73] I find merit in the submissions by Mr
Wijnbeek. The evidence by Ms D[....] that the AOD was not given
effect
to, remains uncontested. The evidence pertaining to the
circumstances that led to the AOD remains uncontested. The
issues between Ms D[....] and Mr B[....] are still outstanding.
The so-called AOD or settlement agreement can therefore not
preclude
Ms D[....] from bringing a claim based on the issues which have not
been resolved.
[74] Mr Morland further submitted that while Ms
D[....] accepted that the property in the USA was purchased in
2004,
the agreement relating to the partnership on her own version was
concluded on 15 June 2005. Her evidence was that she
and Mr
B[....] had the discussion, reached an agreement and then went to the
USA to go and B[....] the property. Mr Wijnbeeck
correctly
submitted that Ms D[....] testified that she was not aware that the
property in the USA was purchased before the commencement
of the
partnership. She was clear in her evidence that she travelled
to the USA with Mr B[....] in 2005 to meet the seller.
According to her the purchase of the property in the USA for their
retirement was part of the partnership agreement. She earned
money
that was paid as donations to Mr B[....]’s children in the USA
to pay it over directly into the bond of the USA property.
Mr
Wijnbeeck correctly submitted that there is nothing in law precluding
a partnership asset from being in existence prior to the
conclusion
of the partnership and therefore eventually forming part of the
partnership.
[75] Mr Morland submitted that while Ms D[....] alleged
in her particulars of claim that she had to reject a lucrative
full-time position with Arup and join Mr B[....], the documentary
evidence accepted by her proves that that did not happen.
Further that she did not contribute her time, expertise, labour and
capital as alleged. On her own version, she was employed by
Mr
B[....]. The court cannot on a balance of probability accept
that any time she spent was pursuant to the agreement.
She
failed to convince the court that the agreement has been established.
She does not have the expertise and has not brought her
labour to the
alleged partnership. Although she denies that she was an employee,
her evidence is to the effect that after one of
the businesses was
sold to Ms Debbie Shepherd, she went with the business and became an
employee of Ms Shepherd. Things did
not go well. She left that
employment and the matter ended at the CCMA where she obtained an
award against Ms Shepherd. The
documents filed on record shows
that she was an employee. As regards the allegation that she also
made capital contributions to
the partnership, he submitted that on
her own version, the monies allegedly paid into the business were
loans.
[76] It was further submitted that the
correspondence that was received from Ms D[....]’s erstwhile
attorneys was sent on her instruction. They were never
retracted. There is consistency on Ms D[....]’s version
on what the position was in respect of the loans. No court acting
reasonably could conclude that there was a contribution towards
the
capital.
[77] Mr Wijnbeeck submitted that the
issue about the work at Arup is what he calls a red-herring
in that
it is not an essential requirement to be proved in establishing a
partnership.
The correspondence that related to the work that Ms D[....] had with
Arup, was to the effect that the work was for three months.
According to Ms D[....]’s evidence the work was for a period of
6 (six) months. She discussed the issue with Mr B[....]
and it
was agreed that she would work for him and together they would build
the empire they had in mind and then retire in the
USA. At the
time Mr B[....] offered her a job, she was earning ± R18
000,00 per month at Arup. From her employment
with Mr B[....]
she was not paid a salary. She was paid a stipend which was far
less than what she earned at Arup. Whether
or not the work at Arup
was for three or six months is immaterial. The fact of the
matter is that she had to leave that job
and join Mr B[....].
[78] I respectively disagree with Mr Morland’s
argument that Ms D[....] did not contribute her time, labour,
capital
and expertise into the partnership as alleged. Mr D[....]’s
evidence which remains uncontested was that she would
run Big D and
the Stone Mad. She would wake up around 05:00 and then travel to
Rustenburg, Northam and Thabazimbi after picking
up other employees
who assisted her with the bumpers. She would return home at
approximately 21:30 as she would first drop off
the other employees
in Diepsloot before she returned home. She would also after a
long day of work, sit with Mr B[....] after
18:00 in the office and
go through the work that was done in the day, and also make sure that
all is set for the work to be done
the following day. She would go to
the extent of preparing supper and go and have it with Mr B[....]
while also performing her
duties at the same time. She cleaned the
house and also looked after and cared for Mr B[....] when he was
gravely sick.
[79] She also looked after the tenants. She ran the
businesses when Mr B[....] was in the USA and when he was
ill.
When the stone business was sold to Mr Peter Hardy and a restraint of
trade applied against Mr B[....], she ran the
stone business and the
money made in the business was utilized in the other businesses for
the benefit of Mr B[....] and herself.
[80] There was also evidence that the motor
vehicles which were registered in Ms D[....]’s names, viz,
the
Opel Astra which was paid off at the time, and the Honda, were traded
in and the 4x4’s were bought and used to run the
businesses and
eventually registered in the names of Big D. The money for the motor
vehicles were not paid back to her. This did
not bother her because
she knew it was part of the plan to invest them in the business
entities, make money and profit and then
utilise the money on their
retirement.
[81] Whether or not the other contributions she had brought into the
partnership, e.g. from the proceeds of her flat and/or money
from her
ex-husband’s medical aid, were regarded as loans in the letters
from her erstwhile attorneys is neither here nor
there. She was clear
in her evidence that she was not happy with the service she had
received from Mr Schoeman. She had to terminate
his mandate and
reclaim the fees paid. The monies were contributed to the businesses
where there were cash flow problems. They
were never repaid to her.
[82] The money that was received after the sale of one of
her motor vehicles was sent to Mr B[....]’s children
in the USA
to pay for the bond of the USA property. The money that was paid
through Attorney Shaun Richardson from her CCMA award
against Ms
Shepherd was also transferred and paid to Mr B[....]’s children
in America. She also mentioned that the
[….] home was
also built with monies that were accumulated through the rentals and
sale of the houses in [….], Out
of Africa Stone or Stone Mad
and money from the bumpers, et cetera.
[83] With regard to her expertise, she did her
presentation in PowerPoint and brochures for the Big D and handed
them out to people. She saved the business money by doing so.
She also testified that when the houses were completed,
she did the
out-fittings with Mr B[....] to ensure that the houses were
habitable. Mention was also made of the decorations
made in the
[….] home which has now been turned into a holiday home.
[84] A lot of debate centred around the issue
of Ms D[....] denying that she was an employee while the
documents
that supported her evidence do not say so. She explained that she
would make a letter of appointment and create payslips
for purposes
of her obtaining a VISA. She would do the same for Mr B[....]
when he wanted to B[....] e.g. a motor vehicle
to ensure that he was
creditworthy. She was adamant that she did not receive a salary. She
received a stipend to enable her to
pay for her policies and pension.
She was not registered for tax and UIF. From the payment
schedules that she provided, Ms
D[....] managed to show that she was
at times not treated as an employee.
[85] The fact that she worked with Ms Shepherd and
ended up taking her to the CCMA is in my view immaterial.
She
explained that the reason she went to work with Ms Shepherd was to
ensure that Ms Shepherd pays the money for the sale of the
business.
This according to her was what was agreed between her and Mr B[....].
It explains why after she was paid the money as
a result of the CCMA
award, that money was also paid into the accounts of Mr B[....]’s
children in the US.
[86] Mr Wijnbeeck correctly submitted that reference to
section 197 of the Labour Relations Act “
LRA
” does
not preclude Ms D[....]’s involvement in the businesses sold.
There was further evidence that Ms D[....] did
run the stone business
for a profit. The profits thereof were also transferred to the USA
for the joint benefit of Mr B[....] and
herself.
[87] All these coupled with the fact that big amounts of
money were transferred into Ms D[....]’s personal account
and
then paid into Mr B[....]’s children’s accounts in
America as well as the payments of the expenses of the businesses
from her personal account, underscore her role as a partner and not
of an employee.
[88] Ms D[....] also explained why she referred to
herself as an employee in her communication with her ex-husband.
[89] Regarding the proposition that the letters from Ms
D[....]’s erstwhile attorneys, were never withdrawn,
nothing
much turns on that in that Ms D[....] explained herself as to why she
did not proceed with them and ultimately instructed
other attorneys.
She has given instructions to a new firm of attorneys and the
particulars of claim as drafted by them are consistent
with the
instructions of a partnership.
[90] Based on the above, I find that the plaintiff has
discharged the
onus
of showing the existence of a
prima
facie
case. I am not persuaded that the defendants are entitled
to absolution from the instance at the close of the plaintiff’s
case. The application for absolution from the instance at the close
of the plaintiff’s case was therefore dismissed with
costs.
[91] Mr B[....] testified that he was 70 years old. He
was born in Durban from a Canadian father. He does not
need
visas to travel to America, Canada and Europe. He explained how
he grew up with some sicknesses. He had to do
part-time jobs
while he was at school and paid his fees at college and university.
He studied for a Bachelor of Science in
Quantity Survey which he did
not complete. He bought shares on the stock exchange and later
moved to Johannesburg to look
for a job on the stock exchange. He got
a job as an unauthorised clerk but he could not trade. He
subsequently became the youngest
authorised clerk on the floor. He
could deal. He did very well until the market collapsed.
[92] He left owning one piece of land at Honeydew.
He was later employed at IBM for a period of nine and a half
years
where he worked as a computer operator, programmer, system analyst,
shift leader and salesman. He took a bricklaying
course and
later started building a house in Honeydew.
[93] After working at Leo Raphaely and Sons, he went
full-time into building. He started with township developments
and property divisions. He became successful and started acquiring
property. He acquired various properties which included, amongst
others, the Grand Beverley townhouse complex and three industrial
stands in Wynberg.
[94] His father formed the B[....] Family Trust in 1984.
He wanted to make sure that his children were provided
for in the
future. His children are the beneficiaries of the family
trust. The trust had three trustees who were him,
his mother
and his brother-in-law.
[95] A friend of his designed the forklift bumper
patent. He took it over and improved on it and became its owner.
In the 1990’s he and Alan Hincks, the original investor of the
patent, rented the bumpers on a monthly basis. Mr Hincks did
not have
any financial interest in the business. He operated the
business in the name of the CC and he was the sole member
of the CC.
[96] He married his ex-wife, Ruth in the 1980’s.
They were blessed with four children. All his children
and their
mother are in the USA. The children are all well-educated.
[97] From 1998 until 2002 or 2003 he was not
married but was in a romantic relationship with someone else with
whom he was in a live-in relationship. He had not met Ms
D[....] at the time. He denied that his relationship with Ms D[....]
started in 2000.
[98] He explained how he met Ms D[....]. They met
and started to see each other more regularly. She moved in
with him
in 2005. Before she moved in with him, Ms D[....] was living in
a flat next to her brother’s business.
She would drive to
him in Fourways during weekends.
[99] Ms D[....] subsequently informed him that her
brother’s business was not doing well. She needed to find
a
job. She enrolled with various employment agencies. She
was offered a job in the Sandton area by Arup. She took the
position
because it was closer to his house. He could not recall when that
was. She was at Arup for about three to four months
as she was
employed temporarily. She was later offered a position with Medscheme
in Bryanston which she took. Medscheme was
also closer to his
house. She worked for Medscheme until she was advised that
Medscheme was moving to the West Rand. This
was too far. She
asked if she could work with him. He did not have a position at the
time but told her that if she is prepared
to work like a personal
assistant, he would create a position under Bulcon. Her duties
involved doing everything in a company.
[100] He disputed that there was an agreement between him
and Ms D[....] for her to reject a lucrative full-time position
with
Arup and join him in order to build up existing businesses for
profit, for a partnership between them. Further that they would
create and run businesses and jointly accumulate assets for both
their benefit.
[101] Bulcon was already in existence and operating in
construction in 2005. He would not have agreed to give
her a
share of any of his existing businesses. If he was going to get
into a business relationship with someone, he would
do due diligence
on their ability, financial expertise and if he had to come to a
decision, he would have it well documented by
professionals.
This he had done with all his other businesses.
[102] In 2005 when Ms D[....] moved in with him, he
was not involved in any of the stone businesses. Big
D was
already in existence and operating. He went into the stone business
about 2008. He, together with Mr MacPherson who
was a member of
Tribal Zone and Kevin Davidson who was a partner bought a property
under Tribal Zone in Plettenberg Bay and put
the stone yard. He
never agreed with Ms D[....] that any of the assets of the business
would be owned by her. He agrees
that Ms D[....] was employed
as an Office Assistant/PA under Bulcon. He employed her because
she could type. She was on her
own. She did not have children at the
nursery school. She could do menial tasks like photocopying and
when the photocopier
ran out of paper, she would go and get paper
without any problems. He was in a romantic relationship with Ms
D[....].
He could say to her they should not work on a Friday
or visit his sister in [….]. She did not have to get
permission
from her bosses. This also applied to several
overseas trips.
[103] Ms D[....] was offered a position as a
secretary for Bulcon. She did all the typing of quotations,
invoices and emails. If it was something urgent, he would do it. She
rarely helped with the B[....]ing and collection of all materials
from cement, sand, et cetera. This was separate while ordering was
part of her job. She would not meet with subcontractors but
the
foreman did. If she met with subcontractors that would have
been to give them access and introduce them to any other
staff member
on site.
[104] He denied that Ms D[....] did the sale of
houses. He testified that she did not have to be registered with
the
NHBRC to sell but had to be accredited and be registered with the
different bodies.
[105] With regard to Ms D[....]’s evidence that she
had to make sure that other businesses such as Kareeboom
and the
family trust were attended to, that she had to look after the tenants
of the houses under them and also do an entry inspection,
he
testified that as part of her duties she would complete a checklist
with a relocation agent. She would not interact with the
security
representative or the principal. He disputed that she did catalogues
of houses that he has been renting out for prospective
clients.
Relocating agents would not allow any documents other than the agent
estate handling the property. She would not give
the estate agents
anything in the form of information. They wanted everything on their
own letterhead and they would refuse her
description and layout.
[106] It was part of her job to do monthly invoices
to tenants that lived in the houses. She had EFT access to
some
accounts of the various entities and in the main he would direct her
what banking to do. She was not a signatory to any of
his accounts.
He denied that she ran all the bank accounts for the various
companies and made sure all the accounts were paid up
to date. He
testified that she would pay what he instructed her to pay. Her
job functions included doing Excel spread sheets
for the bookkeeper.
She would prepare a schedule and he would sit with the bookkeeper to
revise it. The bookkeeper would
put it in a draft management
account format and it would be taken to a Chartered Accountant.
The accounts were handled with
proper accounting principles.
[107] He denied that Ms D[....] would run the
businesses every six months when he went overseas for a period
of a
month. He testified that she never ran any of the business entities.
She does not have the ability to do so. He denied
that she would
oversee all subcontractors and staff. Further that she would make
sure that the buildings were not falling behind
schedule. He
testified that she cannot read a plan.
[108] On the claims that Ms D[....] took over Big D
between 2008 and 2011, he responded that it was not possible
because
at that time she was working for another company. He denied
that she ran Big D from the start to finish. He
testified that
Big D started before the year 2000. The patent was registered
in 1997.
[109] Although he agreed that it would have been
part of Ms D[....]’s duties to do projector screen
presentations
on the bumpers, he testified that he did not know about
the presentations. He knew all the clients. He conceded that Ms
D[....]
did the invoicing for Big D and collected money on those
invoices. She also had duties in respect of the other entities.
He denied that he opened the company Out of Africa Stone Mad between
2011 and 2016 with Ms D[....]. He explained that Mr Chris
McPherson was a member of Out of Africa Stone CC. He wanted to
expand and do bigger jobs. Because he had a knowledge
of
building, Mr McPherson asked him to join him and open a stone yard in
Plettenberg Bay. Mr Kevin Davidson also joined them
as he knew
Plettenberg architecture.
[110] He was diagnosed with prostate cancer in 2012 and
he received treatment for it in 2014. He denied that
because of
his illness, he left the building construction and could not return.
During the period of his illness, he could function
normally. The
impact of the cancer was at night. The first two years he visited
many urologists for an opinion. In 2014 he
heard of the Da
Vinci robot. He had just come back to South Africa from
America. He elected to have the prostate removed.
He
spent three days in ICU and one and half days in a ward. He was
then home.
[111] He did not agree with certain duties that Ms
D[....] alleged she did at Out of Africa Stone/Stone Mad but
testified that certain duties were part of her job. He denied that
she made up a website and testified that that was done by
professionals
whom they paid. Her duties have been to instruct the
professionals to make up the website and do the calling for cards and
flyers
as well as letterheads.
[112] Big D had a truck of its own which was shared
by all the business entities. He denied that every morning
Ms D[....]
would make sure that the correct quantity and stone was uploaded and
delivered. He testified that he would get to work
before 07:00, load
the truck and make sure that it leaves before the rush hour traffic.
Ms D[....] would get to work at 08:15,
08:30. Her scheduled work time
was from 08:00 to 17:00 and it was flexible. It was part of her
duties to attend to wages on a weekly
basis and ensure that all
documents are in place. Being in charge of the stone yard was part of
her duties. He denied that she
would order new stock and take
delivery. Further that she would get best prices possible for new
stock as well as transport.
He admitted that Ms D[....] would
greet customers in a timely fashion while quickly determining their
needs. She recommended merchandise
to customers based on their needs
and preferences and also responded to customer questions. She
engaged with customers and
built relationships with them to increase
likelihood of repeat business. These tasks were part of her duties.
[113] He testified that Ms D[....] was paid a salary.
When she commenced her duties she was paid a salary of R7 100,00
with
a lot of benefits. She did not pay rent, water and electricity,
fuel and motor vehicle insurance. When he went out with
her as a
couple, he would pay. When she left her employment with him in 2016,
she received a salary of R10 300,00 per month.
She normally
received a salary increase in January of each year.
[114] He denied that Ms D[....] contributed her time,
expertise, labour and capital to his businesses. The amount of
R100
000,00 that she alleges that she has contributed to the businesses
was not a contribution. That was a loan to the companies.
She was
never on his medical aid. He regards the amount of R100 000,00 as a
loan because at some stage Ms D[....] presented him
with a document
which said they were loans and to get rid of all this, he said he
would accept it and pay her back. In 2006 he
sold an incomplete house
(House [….]). The purchaser disagreed with some of the
construction and stopped paying.
He was advised to take
occupation of the property incomplete as it was and Ms D[....]
decided to join him. She lent him money
to improve the living
conditions of the house.
[115] He denied the allegations made in the particulars
of claim which related what the intentions of the parties were
with
regard to the alleged partnership, what the partnership would do and
what would happen to the assets of the partnership upon
termination.
Further what would be the assets of the alleged partnership.
[116] His ex-wife, Ruth, was removed as a
beneficiary of the trust because she had become established in
America
and the children were becoming self-sufficient.
[117] There was not much cooking when he resided with Ms
D[....]. She said she could bake but not cook. The domestic
worker would do the cleaning in the main. Ms D[....] would
visit her parents on Sundays and would do a quick tidy up before
she
left. He denied that when he had cancer Ms D[....] would clean up the
blood. Ms D[....] contributed nothing to his success.
[118] He decided to marry Ms D[....] because he
wanted to get on the American Social Security System.
Furthermore, Ms D[....] had said when her parents died, she would
entertain going to America. He loved her.
[119] The Family Trust was managed by the three trustees.
The other trustees knew about the decisions that he made
on behalf of
the Trust and they were happy about them. He denied that the family
trust was used to accumulate, preserve and grow
for Ms D[....] and
him as a partnership.
[120] His relationship with Ms D[....] ended mid-2016.
He does not know why it ended. It was news to him
that the
relationship was terminated because Ms D[....] was unhappy in that
she did not benefit from the estate. He went
with her to see an
advocate and she was invited to draw up the will. He testified
that the circumstances point to theft of
his decoders and her giving
money to her current husband. Her relationship with him was the
best before he returned to South
Africa. She sent him lots of
loving and intimate messages. When he returned to the house, she was
no longer a resident.
[121] He has been receiving a lot of calls saying he was
owing Ms D[....] a lot of money and inviting him to meet with
her.
Ultimately they met at Mugg and Bean. She produced a document and
they went through it. She said if he does not sign
it, there
were people on the way who were coming to kill him and she named
them. He was scared and told her that he would
sign it but
wanted to sign it in a public space. They went to Douglasdale
Police Station. He made some changes suggesting
that it be done
professionally.
[122] Ms D[....] has always received a salary from
him. Even though she was not working in July 2016, she
wanted
her salary. He agreed to pay it and it was delivered to her erstwhile
Attorney, Leisher.
[123] The first time he heard of the alleged partnership
was when the summons was delivered to him by the sheriff.
He has
never received any letter from Ms D[....] or her attorney saying
there is a partnership and he must do something.
[124] It was not possible that Rider would be used
as a cash loan for the partnership as alleged because other
people
were members.
[125] There were business transactions relating to
the stone business which were put through the family trust.
The
trust is a big user of stone.
[126] He denied that [….] was purchased as a
holiday home for him and Ms D[....]. [….] was
purchased
as an investment for the family trust.
[127] Ms D[....] was employed by Ms Shepherd
and that is the reason she got a CCMA award against her.
She
never received the money. There was no discussion between him
and Ms D[....] about her going to a beauty school and using
the money
from the CCMA as a contribution towards the businesses.
[128] He admitted that money was transferred to the USA
through Ms D[....]’s bank account. It was according to
him for
convenience. The money would come from where he would do a deal.
[129] Ms D[....] tried to use the name “
Out
of Africa
Stone
” to register a close corporation for
her private benefit while she was still employed by him.
[130] Under cross-examination he was referred to the
pleadings where he stated that the relationship that ensued between
him and Ms D[....] was a live-in domestic relationship from or about
2005 to 2016. He testified that he and Ms D[....] did
live in
together but not the whole time. There was a period of two
years where he was in Plettenberg Bay where he was involved
with a
stone yard while she was in Gauteng involved with the forklift bumper
business in Pretoria. He denied that she was
also involved with
the tenants. He testified that she had very limited involvement
with tenants as the rentals were all international
corporations. For
security reasons they would use their own people.
[131] He denied that Ms D[....] did not receive any
changes in salary for attending to Rider to Big D, assisting
with the
building of the houses and being responsible for the stone yard. He
admitted that she assisted with transporting the masons
but disagreed
that on occasion she would assist with the measurements. He denied
that she did not receive bonusses and that the
basic salary that she
received did not compensate her for all her inputs. He testified that
it more than compensated her because
her cost to the company was
high. She did not have management skills or qualifications or
experience. She was given a lot
of holiday time and other
benefits.
[132] He denied that when he went overseas he did
not appoint somebody else in his stead in the bumper business,
looking after the tenants and at the stone yard. He testified
that the bumper business was done only three and half days
a month
and has been wound up. The tenants were for one or two properties and
were attended to in less than one day a month.
Stone yard did
require attention but it was sold in 2014 and Ms D[....] went to work
for the purchaser. It was taken back and resold
and Ms D[....] again
went to work for the purchaser and she was fired from both of them.
He denied that Ms D[....] attended
to managerial functions of the
businesses when he was overseas. He testified that Ms D[....] grossly
inflated his times in America.
Sometimes his trips were as short as a
week. He was adamant that the personnel at the stone yard did not
need management.
He denied that where the load was coming in
very late, she stayed at the stone yard until very late at night. He
testified that
they had one driver who would deliver late. He
would sleep in his truck until the next morning and unload the truck
himself.
[133] After being shown the bank statement of Ms
D[....] for December 2007 and December 2010, December 2011,
etc he
conceded that the bonus that appears in December 2007 does not appear
in December 2010 and the subsequent years. He
disagreed that Ms
D[....] did not receive bonusses like any other employee as she had
more than one bank account. She had multiple
credit card accounts.
According to him Pearl Meyer’s schedule shows a bonus. The
document was not discovered. He denied
that the plaintiff was
not treated like a typical employee. He testified that she was
treated better than an employee with
much more holiday time, vehicle,
phones, overseas trips, entertainment, took medical aid contributions
out, and had multiple bank
accounts and credit cards. She also
received commission. He did not agree that the medical aid was
a non-issue because
it was the liability of her ex-husband. He
maintained that he paid her medical aid. She recovered some of it,
and her ex-husband
would only pay the basic plan. He explained
that in her divorce settlement, her ex-husband said he would pay her
medical
aid. He did not pay it. The witness paid it on the
understanding that it would be refunded to him when the issue was
resolved.
Attorneys were involved and her ex-husband paid her a
lump-sum. He also put her on the Discovery basic plan. He
continued
to pay the difference between the basic and the classic
which amount was just over R2 000,00 per month.
[134] He was shown a letter from Ms D[....]’s
ex-husband and bank statements confirming that her ex-husband was
paying an amount towards her medical aid but still contended that he
also contributed and that the two had issues with it which
had to be
resolved by an attorney. He referred to the same letter where it is
stated that Mr B[....] paid an amount of R85 829,00
for her medical
aid.
[135] It was put to him that it is common
cause that Ms D[....] provided furniture that was used in the
business. His reply was that the settlement agreement referred
to an expensive desk that she got from her brother. He said
he would
B[....] it. He was referred to the pleadings where Ms D[....]
alleged that she furnished the offices of the partnership
with her
furniture, and the defendant’s response in the plea denying any
contribution as alleged. He was asked whether
he agrees that
she did furnish the offices of the partnership with her furniture and
he referred to the defendant’s response
to the plaintiff’s
admissions sought to the effect that the plaintiff did utilize
certain items of furniture belonging to
her while employed by the
first defendant. His response was that she did have a desk
which she got from her brother.
When he could not pay her, he
bought it. He does not know if he is referring to the right
furniture.
[136] He disagreed that the fact that Ms D[....]’s
furniture was used in the business office is indicative
that it is
more probable that a partnership agreement existed than a mere
employment relationship. He testified that Ms D[....]’s
brother’s business went insolvent. She received a desk as part
of her payment. She brought the desk and he paid for it.
[137] He was asked whether it was typical that
employee would use personal accounts for business expenses up
to and
inclusive of other wages, and his response was it is typical
depending on the circumstances and he explained that Ms D[....]
would
pay them and these were never big amounts. He conceded that she had
access to the bank accounts of the businesses and the
cards of the
businesses. It was put to him that the expenses could be paid from
the bank accounts and/or cards of the businesses,
he replied that the
card was not with her permanently and she would pay with her personal
bank account if the expenses were urgent.
He was shown the amounts of
more than R3 000,00 which were paid out of Ms D[....]’s
personal account to pay for the business
expenses, he replied that
that might not be totally for the businesses.
[138] He was referred to the pleadings and was told
that Ms D[....] claims a partnership. He replied that
Ms
D[....]’s involvement was restricted to her employment with him
and the domestic relationship she had with him.
He did not
comment when it was put to him that Ms D[....]’s involvement
went beyond that of an employment relationship and
it is of a person
with interest in the enterprises.
[139] He denied that he moved with Ms
D[....] to Plettenberg Bay and that they lived together in
Plettenberg Bay. He testified that she rented in Johannesburg at the
time and would visit him. He further denied that Ms D[....]
looked
after tenants at the time and attended to Big D. He contended that
the work was done by the estate agent.
[140] He denied Ms D[....]’s evidence
relating to the [….] property. He testified that the bond
on
the property was paid with money the Trust borrowed from overseas.
After being shown the VAT reconciliations to support Ms D[....]’s
evidence, he testified that the VAT reconciliations prepared by Ms
D[....] were drafts, always corrected by the bookkeeper and
not
submitted to SARS because the [….] property was not VAT
registered.
[141] He agreed that the tasks of Ms D[....]
involved entities other than Bulcon. It was put to him that
Ms
D[....] testified that she was never paid PAYE or UIF like any other
employee and his reply was that she was a provisional taxpayer.
[142] He testified that he did not employ Ms
D[....] continuously from 2005. In 2006 she was employed by
Ms
Christine Martins under Rider Forklift. The employment could
have been from 2007 to 2010. Rider Forklift paid her
a salary
and her tax. He was shown different amounts in different months which
are reflected in the bank statement of Ms D[....]
and he testified it
was her salary. He explained the difference in the amounts
received that she was paid on commission and
received a cellphone and
travel allowance. It was put to him that the difference in the
amount paid to Ms D[....] shows that
she was not regarded as a
typical employee. He replied he was not a member of Rider. Ms D[....]
did not work for him at the time.
He denied that Ms D[....] resumed
responsibility of much of the business operations of Big D.
Although he conceded that the
accounts of Big D shared a spaghetti of
accounts intermingling all of the different businesses, it had a loss
and he put a business
through it to get rid of the loss from a tax
point of view. He had nothing to do with Rider. He was not a member
but he later took
over and became a member. He used it for other
things. Rider then changed its name to Big D.
[143] He received rental income in the amount of R55
000,00 per month from House no 2047 Mirabel which property had
a bond
with Nedbank. He disagreed that the rental income was substantial.
The rented houses that eventually landed in the
family trust, was
only one house as at a time and not multiple houses. Each house had
its own CC. When the house was sold, the
CC also went. He
denied that the building of the houses whether at the same time or
whether they followed each other, were
financed by the other
business. He testified that they were financed from the bonds.
He disputed that the rental income that
was generated, was not used
to finance the bonds but across business as and when they need it and
the money was sent to the USA.
[144] After being referred to a letter dated 13 July 2013
written by him to Nedbank on behalf of the family trust wherein
he
requested the account of [….] to be converted to an
Access Bond, thereby enabling extra funds to be deposited and
subsequently withdrawn, he was asked whether he sought the permission
of other trustees to write the letter. His response
was yes.
It was put to him that there was no resolution discovered to that
effect. He testified that Nedbank had resolutions.
He was
allowed to communicate with them.
[145] He conceded that he did not seek the approval
of others to write these letters. He denied that the date
of the deed
of the variation of the family trust was 2014 and not 2004 as alleged
by Ms D[....]. He denied that there was
no arm’s length
between him and the Trust.
[146] After he was shown the VAT Reconciliations for
April-May 2015 which indicated that what he regarded as Ms D[....]’s
salary was paid out of Kareeboom and not Bulcon, he testified that
probably Bulcon did not have money. She was paid where the money
was
in the different entities. He explained further that he was also
treated the same as Ms De Oliviera. He drew his salary
from
drawings. He disputed Ms D[....]’s evidence that the
amount she received constituted an allowance that provided
her with
sufficient income to pay her policies and to enable her to qualify
for credit, overdraft, purchase groceries and pay the
domestic
servant.
[147] After being referred to the bank statement of Ms
D[....] for the period 1 May 2005 to 31 December 2007 and the
amounts
in total of R50 000,00 which were paid from this account into Bulcon,
it was put to him that the amounts represent the
proceeds of the sale
of Ms D[....]’s flat which she invested in the business
enterprises which were the stone yard or the
building of the houses
and others. He replied that she made a loan of R50 000,00 but
stone yard was not in existence in the
year 2005. He was asked
whether he repaid the loan and he replied that that has been recorded
in her bank account.
[148] He was shown the restraint of trade agreement
between him and Mr Peter Hardy concluded on 23 December 2005
relating
to the stone business. He agreed with its contents. He denied
that he had to be removed from Stone Mad. He
testified that he
was not paid for the sale of the business and the restraint of trade
never worked.
[149] He testified that in 2014 or 2015 he was the
sole member of Big D.
[150] After having been referred to the
conversation between Ms D[....] and her ex-husband which was
extensively
dealt with during the cross-examination of Ms D[....], it
was put to him that there was ample contribution from Ms D[....]
which
included the contributions that came from her husband. He
disagreed and testified that in the same document Ms D[....] disputes
what her ex-husband says. Instead, she says he provided more than her
ex-husband. He denied that part of the deal between him and
Ms
D[....]’s ex-husband was that she would receive a Honda, motor
vehicle that would be hers. He testified that the deal
was that she
would receive use of the motor vehicle while the contract was on.
[151] He denied that Ms D[....] had a Corsa motor vehicle
which was sold and the proceeds thereof were used towards
the
purchase of a bakkie for Big D. He testified that she was still
owning a Corsa as he was still getting traffic fines.
It was
put to him that subsequently Ms D[....]’s Honda Civic was sold
because of the business needs. He disagreed and
stated that he
does not think the motor vehicles were in Ms D[....]’s name.
[152] With regard to the settlement agreement
concluded by him and Ms D[....], he conceded that what was demanded
was not settled and nothing came out from the letter of demand from
Ms D[....]’s erstwhile attorney (Neil Schoeman).
[153] Reference was made to the Settlement
Agreement that he and Ms D[....] signed at the police station and
he
was asked whether he did perform in terms of the agreement. He
testified that he paid Ms D[....]’s salary for July 2016.
He was asked whether he paid the two amounts of R50 000,00 each in
the total sum of R100 000,00 which comprised the proceeds of
the sale
of Ms D[....]’s flat and the amount she received from
ex-husband’s medical aid. He testified that he paid
Ms
D[....]’s medical expenses which she mentioned in her
conversation with her ex-husband and that his attorney tendered
the
payment. He was further asked if he had performed in terms of the
settlement agreement. He testified that the R100 000,00
was
tendered but the performance was subject to certain conditions. The
other items listed in the settlement agreement were also
tendered.
[154] When shown a policy of Ms D[....] dated 1
January 2014 where he is a beneficiary, he testified in 2014
he got
cancer. He told her to go and get a policy because cancer is
expensive. That was just a medical policy and not
a life
policy. It was put to him that the documents confirm a finding
of a domestic partnership and goes along to show Ms
D[....]’s
devotion to him not only emotionally as a wife but also as a
financier who contributed to the assets. He
replied that she
trusted him.
[155] He disputed that Ms D[....] took her
personal washing machine to house no [….] and also contributed
her personal washing machine to the partnership.
[156] He disputed that the Pathfinder that was allegedly
sold and its proceeds of sale paid into the American account
was a
motor vehicle that was owned by Ms D[....] and that she was involved
in the purchase or financing of it.
[157] Regarding the Wells Fargo Home Mortgage of
the West Palm Beach Property in the US, he disputed Ms D[....]’s
evidence that the bond on the property was reduced with about a
million rand and that the money to pay the bond came from the money
that she sent to the US through her bank account. He testified
that Ms D[....] would not have transferred such lots of monies.
The property was rented. It provided an income. His son was involved
in the purchase of the house and he put the funds when it
was
registered. Further that there is a large amount of money that is
owing to the bank on the property. He does not recall
money
being transferred to the account. If it was, that was negligible.
[158] He disputed that he and Ms D[....] through
their conduct had the intention to build the assets together.
He disputed Ms D[....]’s evidence that she made contributions
through all the motor vehicles she owned. He testified that
Ms
D[....] did not sell the Opel Astra. She owed the bank money
and her ex-husband gave the motor vehicle to their son.
The
Toyota Fortuner was not registered in the name of the partnership but
the company.
[159] He disputed that there was a partnership
between Ms D[....] and him and that it existed until 2016.
Further that he and Ms D[....] contributed to the partnership and
that the legal entities used by the partnership were not separate.
He testified that he was successful before he met Ms D[....]. She was
not a member, director and/or trustee of any of the legal
entities.
She could not contribute.
[160] Mr Emmanuel Tshinnena Phaswa testified that he used
to work for Big D Bumpers. He was employed by Mr B[....].
He
worked with Ms D[....]. She was working as a driver. When
they arrive on site, she would remain in the vehicle,
sitting, and
they would alight from the vehicle and go and work.
[161] He went to work after 08:00. He and Ms
D[....] always worked until 15:00. He lived in Diepsloot at
the
time and he used public transport to come to work.
[162] Under cross-examination he testified that Ms
D[....] never picked him up and travel to work with him.
He
denied that Ms D[....] would pick him up at 05:30 when they go to
Thabazimbi. He testified that they never arrived after
15:00
from the long trips. The farthest they worked was Rustenburg
and Northam. They would not leave at 05:30 to Northam
and neither did
they return after 15:00 from Rustenburg and Northam. They would
leave at 8:00 the latest and return to the
workplace at 15:00.
[163] He also worked with Ms D[....] at the stone yard
and at the building sites. He worked with her when she
travelled in a bakkie where they offloaded the stones at the building
sites. It took him 10 minutes to change the bumper.
In Northam
and Rustenburg, he would change about 30 bumpers. At Northam
the CTM does not have many forklifts. It had
5 and Rustenburg
only had 2.
[164] He and Ms D[....] never waited until late for
the truck for the stone deliveries. The trucks came
at night
and they would find stones in the morning. They would then
offload them. Normally the trucks would come before
17:00.
If it comes after 17:00, they would wait until the next morning as
the business closed at 17:00 and everyone knocked
off at 17:00.
[165] He never worked from very early until late.
He only received overtime when the truck had a breakdown.
[166] Ms D[....] bought them food everyday when they work
with the bumpers. Since he had been working for Mr
B[....], he
does not remember Ms D[....] taking him to Diepsloot. He never got
instructions from Ms D[....]. He got them
from Mr B[....].
[167] He and Ms D[....] would be at the stone yard
for long periods of time when Mr B[....] was not there.
Ms
D[....] would be in the office of the stone yard. During the long
periods when Mr B[....] was overseas, he took instructions
from Ms
D[....]. Every time she gives them instructions, she would say Mr
B[....] said this.
[168] Ms Patricia Dorothy Loxly Bradley testified
that she is an architect. She knows Mr B[....]. She designs
houses for him. She designed 6 (six) houses for Mr B[....]. She also
did other auxiliary services for him which included the showhouse,
furniture and drapes. She also knows Ms D[....]. Ms D[....] was
the girlfriend of Mr B[....] and she knew where Mr B[....]
lived. Mr
B[....] and Mrs D[....] used to live together.
[169] When asked what was Ms D[....]’s
involvement in the development of the property activities, she stated
that she remembers that in one of the properties where they lived, Ms
D[....] used to type letters on the computer.
[170] With regard to accommodation and the
letting of properties, she stated that at some stage when Mr
B[....]
was still in Plettenberg Bay, Ms D[....] had to come back to
Johannesburg. Mr B[....] called her and asked her to help
Ms D[....]
to get accommodation. She became a tenant at one of her
properties.
[171] Under cross-examination she
testified that she would not dispute that Ms D[....] sold
her flat
and invested the money in the businesses she had with Mr B[....].
She would not be able to enlighten the court about
Ms D[....]’s
contribution in the business with about the three motor vehicles that
she had. She does not know why Ms
D[....] had to be in
Johannesburg when Mr B[....] was in Plettenberg Bay. It was put
to her that she would not be able to
dispute Ms D[....]’s
evidence that she was in Johannesburg to oversee the tenants, she
engaged with them and the business
of doing bumpers. She
replied that she did not know what business she was doing.
[172] She was asked whether she knew of the
contribution that Ms D[....] made in terms of labour to the
businesses
of Mr B[....]. She stated that she was aware that Ms
D[....] worked with Mr B[....]. She was answering phones and
she
wrote letters. She could have helped him with his property
rentals. She was his girlfriend. She would do that if she was
helping her partner.
[173] It was put to her that she cannot dispute
that during Mr B[....]’s absence to America, Ms D[....]
took
charge of the businesses in South Africa. Her response was that as
his girlfriend, she cared about him. She helped him.
She cannot
see a partnership there.
[174] She was asked if she cannot deny that
from 2005 until Ms D[....] left Mr B[....], she was involved
in the
businesses. She testified that Ms D[....] was paid a salary because
when she came back to Johannesburg, Mr B[....] told
her that she did
not earn a lot of money. She informed Mr B[....] that she would
help with reasonable accommodation. She
could not dispute the Ms
D[....]’s evidence that she received a stipend and not a salary
for the work she did. She
also could not dispute that she made
contributions to the businesses. Mr D[....] worked with Mr
B[....]. Ms D[....]
called her one day looking for the plans of
the house they were planning to sell.
[175] It was put to her that Ms D[....]
claims a universal partnership to which she and Mr B[....] made
contributions and operated. She is not in a position to deny
that because she does not know. She testified that she
had
known Mr B[....] for many years. She has known Ms D[....] as his
girlfriend. Ms D[....] worked for him. She earned
money
from him. She does not recall dealing with Ms D[....] in Mr B[....]’s
place or in any form that she could understand
her to be a partner.
[176] Ms Marie-Louise Stoltz testified that she is
a professional accountant and tax practitioner. She
was Mr
B[....]’s accountant for his company for a number of years. The
companies were a family trust, Bulcon, Kareeboom,
Big D and Rider.
She knew Ms D[....]. She had dealings with her regarding the
accounting when she presented them with a VAT
schedule they required.
[177] Ms D[....] would prepare the schedules
in Excel of all income and expenses and email them through
to them
and they would calculate VAT according to that. Sometimes they made
adjustments but she would not be able to comment on
the completeness
of the list. Ms D[....] received a regular payment. She also
did the tax for Mr B[....], Ms D[....] and
the business entities. She
also submitted tax returns for Ms D[....].
[178] She denied that there were no tax returns for
Ms D[....]. She stated that her tax returns were filed on
e-filing.
Regarding accounting for the various entities, the expenses were
reimbursed to Ms D[....]. She had to reimburse
the labourers at the
different sites and she withdrew money from her personal account.
There would also be small amounts of the
things she had to pay there
and there.
[179] Regarding the financial status of the
business entities, she testified that some of them are dormant
and
some have huge assessed losses.
[180] She started doing the accounting for the
business entities around 2011.
[181] Under cross-examination she testified that she is
an accountant registered with SAIPA (the South African Institute
of
Professional Accountants). She is not a bookkeeper. Ms D[....]
emailed the schedules to them directly. Mr B[....]
trusted them
that they would do the job with what Ms D[....] provided. She never
sat down with Ms D[....] to discuss the schedules.
Any
discussion could have taken place telephonically or by email.
[182] Mr Peter Hardy’s wife was actually the
bookkeeper for Mr B[....]’s companies. She captured
the
daily slips and bank transactions and they took over from there to
compile financial statements. They have a software
that they
use called a Pastel file, to do the accounting and the capturing
work.
[183] She was asked whether she became
involved with Mr B[....] and Ms D[....] close to the end of the
relationship. She testified that she cannot remember exactly when
they went their separate ways or how long they were together
before
she got involved. She was not involved when Mr B[....] and Ms De
Oilveira came together. She does not know what their arrangements
were.
[184] She was asked about the contributions that Ms
D[....] made financially, the selling of a flat, through
vehicles,
through her labour, et cetera whether she knew anything about them.
She testified that she does not recall the
transactions. She would
not know about them if they happened before her.
[185] She had regular meetings with Mr
B[....]. She was asked if she would not dispute that no meeting
of
trustees of the trust or members of the close corporations or of
directors or shareholders in the companies were ever convened,
alternatively were not convened frequently – the trustees,
members, directors or shareholders acted solely on the instructions
of Ms D[....] and Mr B[....], alternatively Mr B[....]. She
testified that it did not happen before she got involved. After
she
became involved, the meetings were only between him and Mr B[....].
[186] She discussed the tax returns she did
on behalf of Ms D[....] with her on the telephone or by mail.
It was put to her that Ms D[....] was not aware of the tax returns
that were submitted on her behalf and she says they were not
discussed with her. Further that such tax returns of her were
never discovered. She testified that she has an engagement
letter
signed by Ms D[....] for the tax returns. It was put to her
that the engagement letter has not been discovered.
[187] Ms D[....] was employed by either Kareeboom or
Bulcon. When the tax return was submitted she did not write the
name
of the company from where her remuneration came. Her remuneration was
reflected as a consulting fee. She was assisting Mr
B[....] hence she
was paid the consulting fee. She received schedules from many
previous bookkeepers on the monies Ms D[....] earned
and what money
she received from the business. She did not establish that herself.
The same was done with the tax returns of Mr
B[....]. He did not
receive a salary.
[188] She could not dispute that Ms Oliveira
was never registered for UIF. She was cross-examined on what
purports
to be a payslip of Ms D[....] and it was put to her that as per the
payslip, her salary was paid from Big D and not from
Kareeboom and
Bulcon. Although not 100% certain, the companies were never
registered for PAYE.
[189] She does not have any knowledge that Ms
D[....] was paid a stipend of a certain amount that enabled her
to
pay her policies and instalments. All monies that were paid to her
were shown as income. She was not certain, how they
were
structured or decided. She would not know that Ms D[....]’s
payslip was not worth the paper it was written on.
Further that the
payslip was purely to present an employer and income for Ms D[....]
and Mr B[....] in them planning to emigrate
to the USA. She would
also not have known that even the payslip of Mr B[....] was prepared
for emigration purposes or applying
for finance purposes. She would
not comment on whether or not Ms D[....] was treated differently from
Mr B[....].
[190] She knows that Ms D[....] was involved
in one of the businesses but she does not know which one.
She
also knows that she was involved in a stone business. After
having been referred to a letter on the letterhead of Bulcon
Construction with the heading “
certificate of employment –
Mrs L[....] D[....]
” dated 4 August 2015, it was put to her
that the letter confirms that Ms D[....] was only involved in
Kareeboom and Bulcon.
She testified that she knew nothing about the
letter.
[191] Reference was made to Ms D[....]’s
bank statement. There was an amount of money that
was paid to
Ramsay Buckley on 22 August 2006. She was asked whether she
included the substantial amounts that were paid from
Ms D[....] to Mr
B[....]’s children in America in the tax she declared for her.
Her response was that in 2006 she was
not involved. After being
referred another amount that was paid from Ms D[....]’s account
to the USA on 6 December
2014 and asked whether the amount was
declared for tax purposes, she testified that the payment of the
money had nothing to do
with Ms D[....]’s local tax. It
is only money that was paid into the account that is taken into
account.
[192] The bank statements of Ms D[....] show
that money came in and out. She was refunded the same
day for
what she paid out. Ms D[....] assisted Mr B[....] and she was paid
for it. Whether or not the payments made to Ms
D[....] were
regarded as salaries is for discussion. She cannot comment on Ms
D[....]’s financial contributions. She knew
that Ms D[....] and
Mr B[....] wanted to go to the US together and that on Mr B[....]’s
return from the US, he found that
Ms D[....] had left the common
residence.
[193] Under re-examination she testified that the
contributions allegedly made by Ms D[....] to the partnership
would
appear on the loan account in her favour. She remembered a very small
amount which could be seen as a financial contribution
to the
business. She would not be present at the meeting of the
trustees. The accounting protocols and mechanisms which
she
followed account on an ongoing basis. It did not deviate from what
she received from the bookkeepers. It was not necessary
for her
to delve into previous accounting periods. The information on
the VAT schedule was not the correct information upon
which the
financials were ultimately produced. The invoices had to go with
them.
[194] Mr Michael Young testified that he was
previously a property developer and is currently in the manufacturing
industry. He has known Mr B[....] since 1997. He met him
when he wanted to purchase one of his properties. His
involvement with Mr B[....] was purely selling houses and they became
good friends.
[195] He has knowledge of Mr B[....]’s
business activities. He knows Ms D[....].
From his
recollection and what she was told, Ms D[....] was Mr B[....]’s
girlfriend. She was never present in any of
the meetings he had
with Mr B[....]. He sold house no. 2051 and considerable stuff
from paving to aluminium windows, doors
to roof and possibly sand to
Mr B[....]. In anything that he did for Mr B[....], he never
dealt with Ms D[....].
[196] Mr B[....] was threatened
by Ms D[....] and Mr Lovett.
[197] Under cross-examination it
was put to him that he cannot dispute Ms D[....]’s evidence
that she has contributed to the partnership. He disagreed and
testified that his friendship with Mr B[....] who was also
his
neighbour for about 7 (seven) years was such that they would discuss
everything. Before they supplied anybody in the company
or personal
on account, people had to fill out a credit application form. They
asked for the directors’ and members’
names. On the
application form, Mr B[....] was the sole member of the CC and the
sole director of all the companies that he bought.
Ms D[....] was
never ever visible or discussed.
[198] He knew nothing about the proceeds of
the flat that Ms D[....] sold. He does not have knowledge of
Ms
D[....] dealing with the finances and the motor vehicles. He
denied that Ms D[....] took a bakkie and collected materials.
She never collected any material from his business. Due to the nature
and size of the quantities, they deliver everything. There
are no
collections.
[199] He was not the only supplier of Mr
B[....]’s companies. He would not know if Ms D[....]
collected sand from somewhere.
[200] He knew that Mr B[....] and Ms Lovett buried
the hatchet after an agreement was reached. He facilitated
the
truce. He disputed that there was a partnership between Ms D[....]
and Mr B[....]. He denied that he would not know what
the
arrangement between the two was.
FACTS
THAT ARE COMMON CAUSE BETWEEN THE PARTIES
[201] Ms D[....] and Mr B[....] lived
together in a relationship akin to husband and wife from 2005.
She worked for Mr B[....] from 2005 until July 2016 when the
relationship between her and Mr Bulkely was terminated. While
working for Mr B[....] huge amounts of money were deposited into her
account and then transferred through her account to Mr B[....]’s
children in the USA.
[202] She sold her flat and the proceeds thereof
were paid over to the business entities of Mr B[....] where
there
were cash flow problems. This also included the lump sum that she
received from the Medical Aid of her husband.
[203] Mr B[....] and Ms D[....] were
engaged but did not marry each other.
FACTS
THAT ARE IN DISPUTE
[204] Ms D[....] alleges that a
universal partnership existed between her and Mr B[....] and that
although she worked for Mr B[....], she was not paid a salary. She
was only paid a stipend just to pay for her policies, business
expenses and household necessities. The allegations were
disputed by Mr B[....].
Issues
for determination
[205] The issue for determination is whether or not a universal
partnership existed between Mr B[....] and Ms D[....].
THE
LEGAL PRINCIPLES APPLICABLE
[
206]
In
Ponelat v
Schrepfer
[7]
,
it was held that a
universal partnership exists if the necessary requirements for its
existence are met regardless of whether the
parties are married,
engaged or cohabiting. The requirements for the existence of a
universal partnership have been summarised
in the matter of
Pezutto
v Dreyer and Others
[8]
and also confirmed in
Butters
v Mncora
[9]
:
“
Our courts have accepted Pothier’s formulation of
such essentialia 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-74A; Purdon v Muller
1961 (2) SA 211
(A) at 218B-D. The
three essentials are (1) that each of the partners bring something
into the partnership whether it be money,
labour or skills; (2) that
the business should be carried on for the joint benefit of the
parties and (3) that the object should
be to make profit.
(Pothier: A Treatise on the contract of Partnership (Tudor’s
translation). A fourth requirement
mentioned by Pothier is that the
contract should be a legitimate one.
”
[207]
In
Butters
[10]
the history of the different types of partnership as well as their
applicability to cohabitants was discussed. It was held at par
[18]
that such partnerships can extend beyond commercial undertakings and
that:
“
(a)
Universal partnerships of all property which extend beyond commercial
undertakings were
part of Roman Dutch law and still form part of our
law.
(b)
A universal partnership of all property does not require an express
agreement. Like
any other contract, it can also come into existence
by tacit agreement, that is, by an agreement derived from the conduct
of the
parties.
(c)
The requirements for a universal partnership of all property,
including universal
partnerships between cohabitees, are the same as
those formulated by Pothier for partnership in general.
(d)
Where the conduct of the parties is capable of more than one
inference, the test for
when a tacit universal partnership can be
held to exist is whether it is more probable than not that a tacit
agreement had been
reached.
”
[11]
(emphasis provided)
[208] In the majority decision of
Butters
,
it was held at par [19] that:
“
Once it is accepted that a partnership enterprise may
extend beyond commercial undertakings, logic dictates, in my view,
that the
contribution of both parties need not be confined to a
profit making entity … It can be accepted that the plaintiff’s
contribution to the commercial undertaking conducted by the defendant
was insignificant. Yet she spent all her time, effort and
energy in
promoting the interests of both parties in their communal enterprise
by maintaining their common home and raising their
children. On the
premise that the partnership enterprise between them could notionally
include both the commercial undertaking
and the non-profit making
part of their family life, for which the plaintiff took
responsibility, her contribution to that notional
partnership
enterprise can hardly be denied.
”
The
requirements for a tacit agreement
[209] In the minority judgment in
Butters,
penned by Heher JA with whom Cachalia JA concurred, he summarised the
approach to establishing whether a tacit agreement exists,
as
follows:
“
[34] This appeal is about an alleged
tacit agreement. As in all such cases the court searches the
evidence
for manifestations of conduct by the parties that are
unequivocally consistent with consensus on the issue that is the crux
of
the agreement and per contram, any indication which cannot be
reconciled with it. At the end of the exercise, if the party placing
reliance on such an agreement is to succeed, the court must be
satisfied, on a conspectus of all the evidence, that it is more
probable than not that the parties were in agreement, and that a
contract between them came into being in consequence of their
agreement. Despite the different formulations of the onus that
exist: see the discussion in Joel Melamed and Hurwitz
v
Cleveland Estates (Pty) Ltd
[1984] ZASCA 4
;
1984 (3) SA 155
(QA) at 164G-165G;
Christie’s The Law of Contract in South Africa, 6ed 88-89, this
is the essence of the matter.
”
DISCUSSION
[210]
The court will approach the factual disputes which exist
between the evidence presented on behalf of the plaintiff
and the
evidence on behalf of the defendants by applying the principles
enunciated in the decision of
Stellenbosch
Farmers Winery Group Ltd and Another v Martell et Cie and
Others
[12]
.
Nienaber JA held as
follows:
“
To come to a conclusion on the disputed issues a court must
make findings on (a) the credibility of the various factual
witnesses;
(b) their reliability; and (c) the probabilities. As
to (a) the court’s finding on the credibility of a particular
witness will depend on its impression about the veracity of the
witness. That in turn will depend on a variety of subsidiary
factors, not necessarily in order of importance, such as (i) the
witness’s candour and demeanour in the witness box; (ii)
his
bias, latent and blatant; (iii) internal contradictions in his
evidence; (iv) external contradictions with what was pleaded
or put
on his behalf, or with established fact or with his own extracurial
statements or actions; (v) the probability or improbability
of
particular aspects of his version; (vi) the calibre and cogency of
his performance compared to that of other witnesses testifying
about
the same incident or events. As to (b), a witness’s
reliability will depend, apart from the factors mentioned
under
(a)(ii); (iv) and (v) above, on (i) the opportunities he had to
experience or observe the event in question and (ii) the
quality,
integrity and independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability
or
improbability of each party’s version on each of the disputed
issues. In the light of its assessment of (a); (b)
and (c) the
court will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded in discharging
it.
The hard case, which will doubtless be the rare one, occurs when a
court’s credibility findings compel it in one
direction and its
valuation of the general probabilities in another. The more
convincing the former, the less convincing
will be the later. But
when all factors are equipoised, probabilities prevail.
”
[211] Ms D[....] was open to the court. She gave
evidence in a satisfactory manner. Her evidence was logical
and
coherent save for minor discrepancies. She conceded that the contents
of the email she wrote to her ex-husband pertaining to
the fact that
she was employed at the stone business in Alberton and only earning a
basic salary were not correct. She explained
why she did not
state the true situation to her ex-husband. There was also an
issue about her stating that she did not receive
what she called an
allowance for June 2014. She was shown her Nedbank account
statement where she conceded that she received
the allowance for June
2014. It should be noted that Ms D[....] was testifying about
things that happened long time ago.
There was further evidence
that related to her having testified that where she had paid for
business expenses less than R1 000,00,
the amounts were reimbursed to
her. After she was shown that amounts which were in excess of R1
000,00 on her bank statement, were
repaid to her, she conceded to
that. While in her evidence in chief she testified that the work at
Arup was for a period of a year,
under cross-examination she
testified that it was for a period of six months. This evidence
is, in my view, not material
to the issues at hand. It does not
assist the court to determine whether a universal partnership as
alleged exists or not.
I find that her entire evidence was
credible and therefore could be relied upon.
[212] Mr B[....] called witnesses in defence
of the defendants’ case. It is my view that the
evidence
of these witnesses would not be of assistance to the court to
determine whether or not a universal partnership existed
between Mr
B[....] and Ms D[....]. The witnesses were not involved in Mr B[....]
and Ms D[....]’s day to day activities and
how they ran the
businesses.
[213] Mr Phaswa was just an ordinary
employee. He only testified about his work and interaction between
him and Ms D[....]. I found serious contradictions in his evidence.
While he denied that Ms D[....] picked him up in Diepsloot
where she
would travel to work with him, he testified that they took long trips
together where they travelled to places outside
Gauteng, i.e.,
Rustenburg and Northam. His evidence that they never left at 05:30
when they took long trips and would return to
Gauteng around 15:00 is
highly improbable if one considers the distance from Johannesburg to
Rustenburg. Strange enough he
testified that when Mr B[....]
was overseas, he and Ms D[....] spent long periods of time at the
stone yard. He never received
instructions from Ms D[....].
Where he received instructions from her, she would always say the
instructions came from Mr B[....].
[214] To a greater extent, Mr Phaswa’s evidence
corroborates Ms D[....]’s evidence. His evidence that he
worked
with her where they off-loaded the stones at the building sites and
that she bought him food everyday when they worked with
the bumpers.
[215] Ms Stoltz only became involved at a
very late stage of the relationship between Mr B[....] and Ms
D[....]. She knew nothing about the contributions allegedly made by
Ms D[....] to the businesses of Mr B[....]. I did not find
Mr Young’s
evidence credible. He is a friend of Mr B[....]. His evidence was
just to protect the interests of Mr B[....].
[216] Mr B[....] literally disputed the evidence of Ms
D[....]. According to him Ms D[....] was just an ordinary
employee who was paid a salary for the work that she was doing and
had more benefits than the other employees. She did not pay
rent,
water and electricity, fuel and motor vehicle insurance and could go
on holiday with him free of charge. He and Ms
D[....] had a
live-in relationship. They agreed to stay together. The fact that she
was not paying rent, water and electricity
cannot be regarded as a
benefit to her. He only saw her as a girlfriend. She
could not cook and the cleaning in the
main was done by the domestic
servant. Strange enough Mr B[....] testified that there was not
much cooking when they resided
together. The evidence that Ms D[....]
did the cleaning in the house and also prepared meals for him and her
was not contested.
She even testified that she looked after Mr
B[....] when he was gravely sick. I did not find any truth in Mr
B[....]’s evidence
that when he had cancer he could function
normally because the impact of the sickness was only at night.
He did not come
clean and explain what was happening to the
businesses between 2012 and 2014 after he was diagnosed with cancer
until he was healed.
The impression he gave was that the treatment
did not take long and he was back on his feet again. Ms D[....]
testified that
when Mr B[....] had cancer, he could not do anything.
He was home bound. The cancer was healed and his retina fell off his
left
eye. He could not attend to the businesses for about eight
months. She had to run the stone business.
[217] Mr B[....] even denied that Ms D[....]
ran the businesses when he was overseas although the evidence
was
clear that he left the businesses in the hands of Ms D[....]. Instead
he criticised Ms D[....]’s evidence that she inflated
his stay
in America. He tried to justify his actions by mentioning that his
trips to the US were of a short duration of about a
week. The bumper
business only had to be attended to three and a half days a month. It
had been wound up and the tenants had to
be attended to in less than
a day in a month. Ms D[....] did not have the capacity to run the
businesses. Mr B[....] was not candid
with the court. He just gave
evidence to suit his own case.
[218] Mr B[....] did not give a good impression to
the court. He held the attitude that he was a successful businessman
before he met Ms D[....]. According to him Ms D[....] could not do
anything in the businesses than working as an employee. He could
not
explain why it was necessary for Ms D[....] to have EFT access to the
accounts of the various business entities where he would
direct her
what banking to do while she was an ordinary employee.
[219] Although he testified that the amount of R100
000,00 that Ms D[....] contributed to the businesses when there
were
cash flow problems, were loans, he could not explain why were they
not repaid to her when they were still together in the
relationship.
[220] There was an issue about the money that was
paid to Ms D[....] pursuant to the CCMA award against Ms Shepherd.
Ms D[....] testified that the money was paid to her through her
previous attorney Mr Shaun Richardson. It was subsequently
paid
over into the accounts of Mr B[....]’s children in the USA.
Mr B[....]’s evidence was that the money was
never paid to Ms
D[....]. Strange enough his further evidence was that there was
no discussion between him and Ms D[....]
for using the money from the
CCMA award as a contribution towards the businesses.
Whether
or not a partnership agreement existed
Each
of the partners bring something into the partnership whether it be
money, labour or skill
[221] It is common cause between the parties
that the proceeds of the sale of the flat that belonged to
Ms D[....]
in the amount of R50 000,00 were paid into the businesses of Mr
B[....] when there were cash flow problems. Ms
D[....]
testified that Mr B[....] told her after she had moved in with him
that Bulcon had cash flow problems. She sold her
flat which had
tenants at the time and gave the money to Mr B[....]. The money was
never repaid to her. Whether or not the money
was regarded as a loan
is immaterial. It was never refunded to her. It is also common cause
that another amount of R50 000,00 from
Ms D[....]’s
ex-husband’s medical aid was paid into Kareeboom. The reason
given was that there were cash flow problems
in the business.
[222] There were also other contributions in the
form of trade-in of the motor vehicles that belonged to Ms D[....]
and them being replaced with new motor vehicles which were eventually
registered in Mr B[....]’s business entities. Mr B[....]
tried
to dispute Ms D[....]’s evidence regarding that but I did not
find his evidence convincing. With regard to the
Opel Astra he
testified that the motor vehicle was not sold. It was given to
Ms D[....]’s son. That evidence was not
put to Ms D[....] when
she testified. The other motor vehicle was the Honda Civic. Ms
D[....]’s evidence was that Mr
B[....] bought her the motor
vehicle after her ex-husband had given a project to Mr B[....] to do
some job for him. When
he was asked how could Mr B[....] thank
him, he asked him to B[....] a motor vehicle for her. That was
done and the motor
vehicle was bought and registered in her name. The
motor vehicle was subsequently sold and the proceeds thereof were
deposited
into the account of Mr B[....]’s children in the US.
While he conceded that the motor vehicle was bought as alluded
to by
Ms D[....], he denied that it was registered in her name. He
testified that she was only entitled to the use of the
motor vehicle.
If his evidence is correct that would defeat the purpose why the
motor vehicle was bought. It is more probable
that the motor
vehicle was registered in the name of Ms D[....].
[223] There was also evidence that the money that
was paid to Ms D[....] pursuant to the CCMA award against Ms
Shepherd
was also paid into the account of one of Mr B[....]’s children
in the US. If there was no arrangement between
Ms D[....] and
Mr B[....] why would these amounts be paid to his children’s
accounts in the US.
[224] Mr B[....] already had the various businesses
when he met Ms D[....]. Ms D[....] explained how she
left the
job that she had at the time, her discussions with Mr B[....]
regarding what they would do together and build the empire
they had
in mind and then retire to the USA. According to Mr B[....], Ms
D[....] was not working for Arup at the time she employed
her. She
was working for Medscheme and she asked for a job from him because
she had just been told that Medscheme was moving to
the West Rand. Mr
B[....] could not tell when was Ms D[....] working for Arup. He
only testified that she worked there for
three to four months. A
letter was shown to Ms D[....] that stated that she worked for Arup
for three months which she denied,
and which she explained that she
was seeing it for the first time. She was clear in her evidence
that she worked at Arup
for about six months and had to leave a
salary of R18 000,00 per month to join Mr B[....] for a stipend of R7
100,00 per month
because she and Mr B[....] had a plan to grow the
businesses, make money and then retire to the USA.
[225] Her evidence was clear that she put long
hours into the businesses and played various roles in order to
ensure
that whatever she planned with Mr B[....] was a success. She
was in charge of the businesses when Mr B[....] was in
the USA and
when he was sick. She would even spent the little money that she had
in her account to pay for the expenses of her
businesses and also
B[....] food for staff members. She could pay wages of other
employees and also B[....] groceries at home from
her personal
account. I am persuaded that Ms D[....] and Mr B[....] brought money,
labour or skill into the partnership.
[226] I have dealt extensively with the issue
pertaining to the oral agreement between Ms D[....] and Mr B[....]
in
the application for absolution from the instance. Although Ms D[....]
alleged an express agreement between her and Mr B[....],
it is more
probable that a tacit agreement also came into being given the
conduct of Mr B[....] and Ms D[....]. Ms D[....]
literally did
all the jobs in the business entities. She was in charge of the stone
business in Alberton. She ran Big D and
that is why the Open
Astra was traded in and 4x4 was bought for her to be able to run the
business.
The
business should be carried on for the joint benefit of the parties
[227] Ms D[....] made capital contributions to the
businesses of Mr B[....] and never demanded repayments. She worked
long hours together with Mr B[....] and was left in charge of the
various business entities when Mr B[....] was overseas and when
he
was sick. She was clear in her evidence that when Mr B[....]
offered her a job, she and Mr B[....] decided that they were
going to
make money and then retire in the USA. This evidence is
corroborated by the fact that she and Mr B[....] postponed
their
wedding in 2014 and their intention was to emigrate to the US after
their marriage. They had already started to sell some
of the
properties, in particular, the houses which were rented and
transferred money to the US for their retirement.
[228] There was uncontested evidence that they
moved from one house to another, residing in incomplete houses
and
also running businesses from those houses in order to save money for
their retirement in the USA. Whatever money they
acquired was
deposited in Ms D[....]’s personal account and then transferred
into Mr B[....]’s children’s accounts
in the US. Mr
B[....] had businesses before he met Ms D[....]. Why was it
necessary for large sums of money to be deposited
into Ms D[....]’s
personal account if that was to benefit Mr B[....] and his children
only. Obviously he had a way
of sending money to the US prior
to meeting Ms D[....]. The probabilities are that the reason
why Ms D[....]’s account
was used was to benefit Mr B[....] and
Ms D[....] and further that the money could only be for their
retirement in the US.
[229] Ms D[....] testified that she and Mr
B[....] travelled to the US to meet with the seller of the house.
Further, that some of their belongings which included their dogs and
her personal clothes, which have not been returned to her,
have
already been moved to the US.
[230] There is overwhelming evidence that the
business was carried on for the joint benefit of both Ms D[....]
and
Mr B[....]. They were the two parties who were responsible for
the day to day running of the businesses.
The
object of the partnership is to make profit
[231] There can be no doubt that the
businesses were run for profit. The fact that Ms D[....] did
not have a job title, did all the jobs that she could do in all the
business entities, was not specifically employed by a specific
business entity, is an indication that the jobs that she did could be
done by a number of employees. However, to save costs
of
employing more people, she did all the work. She was left in charge
of the business when Mr B[....] was sick and in America
and was not
paid for the role she played in the absence of Mr B[....].
[232] If she was an ordinary employee like the
others, she would have been paid for the work she did. If
Ms
D[....] was an ordinary employee who earned a salary of R7 100,00 per
month and only Mr B[....]’s girlfriend, why was
it necessary
for Mr B[....] to make arrangements for her account to have a credit
limit of R50 000,00 and an overdraft of R35 000,00
on her cheque
account. Why would she be expected as an ordinary employee to use her
credit card and cheque account to B[....] materials,
pay wages of
other employees, fuel for the truck, groceries and toiletries for the
office. This does not, in my view, accord
with the
responsibilities of a typical employee in a business and a live-in
partner in a domestic relationship.
Which
assets form part of the universal partnership
[233] Ms D[....] devoted all her labour in
all the business entities. She did not have a job title.
She
worked in all the business entities.
[234] Having regard to the totality of
the evidence, I am satisfied that none of the assets or accounts
were
excluded from the operations of the partnership.
The
counterclaim
[235] The counterclaim was withdrawn when an application
for absolution from the instance at the close of the plaintiff’s
case was made. The counterclaim was opposed. The plaintiff is
therefore entitled to the costs of the counterclaim.
[236] In the result the following order is
made:
1.
The thirteenth defendant
is properly before the court.
2.
The action against the
eighth to the twelfth defendant is dismissed.
3.
The counterclaim is
dismissed.
4.
The first to the seventh
defendants and the thirteenth to the fourteenth defendants are
ordered to pay the costs of the counterclaim
jointly and severally,
the one paying the other is absolved.
5.
It is declared that a
partnership existed between the plaintiff and the first defendant in
equal shares in respect of the partnership,
its businesses, assets
and investments.
6.
It is declared that the
partnership between the plaintiff and the first defendant was
dissolved, alternatively terminated on 1 July
2016, being the date
that the plaintiff vacated the house shared by her and the first
defendant.
7.
All assets set out in
paragraph ‘I’ ‘Partnership Assets on Termination’
on Annexure “A”, form
part of the assets of the
Partnership.
8.
An order appointing a
liquidator being a chartered accountant, with authority to realise
the whole of the partnership assets, to
liquidate the liabilities of
the partnership, to prepare a final account as on the date upon which
the partnership was terminated,
namely, 1 July 2016 and pay to the
plaintiff half of the net profits and half of the assets or the net
value of the assets of the
partnership, together with mora interest
at a rate of 10,25% from date of dissolution of the partnership until
date of full payment.
9.
That all the trustees,
directors and the members of the company(ies) and or close
corporation(s) be ordered to co-operate with the
liquidator and to
furnish the liquidator with such information, accounting records and
documentation which may be requested by
the liquidator.
10.
Payment of the
amount determined within 14 business days of a final accounting by
the liquidator.
11.
The first to the seventh
defendants and the thirteenth to the fourteenth defendants are
ordered to pay the costs of the action,
which costs include the costs
of two counsel, jointly and severally, the one paying the other to be
absolved.
M
J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Appearances
For the plaintiff
D H Wijnbeek and K Motla
Instructed by
L H J Attorneys Inc
For the defendant
L C M Morland
Instructed by
B D K Attorneys
Heard on
17 September 2020
Handed down
30
March 2021
[1]
(364/2019)
[2020] ZASCA 22
(25 March 2020) para 25
[2]
Tusk
Construction Support Services (Pty) Ltd & Another v Independent
Development Trust para 25
[3]
Supra
para 26
[4]
2001
(1) SA 88 (SCA); [2000] 4 All SA 241 (A)
[5]
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at 37G-38A,
Schmidt
Bewysreg
4
th
ed at 91-2
[6]
See:
Build-A-Brick
BK en ‘n Ander v Eskom
1996 (1) SA 115
(O) at 123A-E. See also
Schmidt
CWH, Law of Evidence,
loose
(1) leave edition, p. 3-16 to 3-18
[7]
2012
(1) SA 206
(SCA) at 213
[8]
1991
(3) SA 379
(A) at 390
[9]
2012
(4) SA 1
(SCA) par [11] and [17]
[10]
Supra
at par [18]
[11]
Ally
v Dinath
1984 (2) SA 451
(T) at 453F-455A,
Mühlmann
v Mühlmann
1984 (3) SA 20
(A) at 109C-E,
Ponelat
v Schrepfer supra
[12]
2003
(SA) 11 at 14I-15D