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[2021] ZAKZPHC 96
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Magwaza v Ndoora and Others (3013/2021P) [2021] ZAKZPHC 96 (1 December 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
Case
No: 3013/2021P
In
the matter between:
MAKHWENENE INGRID
MAGWAZA APPLICANT
and
KHETHA
NDOORA FIRST
RESPONDENT
REGISTRAR OF
DEEDS SECOND
RESPONDENT
MASTER OF THE HIGH
COURT THIRD
RESPONDENT
ORDER
The following order is
granted:
1. The
application to refer the matter to the hearing of oral evidence is
refused with costs;
and
2. The
application is dismissed with costs.
JUDGMENT
MOSSOP
AJ:
[1]
There
can be no doubt that, as the first respondent puts it, the late Mr
Sylvester Ndoora (the deceased) was a philanderer. He was
a
philanderer in the true sense of the word.
[1]
He appeared to love life, women and fathering children. He was
married to the first respondent, with whom he fathered four children.
In addition thereto, he fathered four children with four different
women. He never married any of these other four women.
[2] One
of the woman that he became involved with was the applicant. This
relationship did not produce any children
despite the deceased and
the applicant undergoing in vitro fertilisation treatment (the IVF
procedure). The relationship between
the applicant and the deceased
began in May 2015. When he commenced the relationship, the deceased
did not disclose to the applicant
that he was married to the first
respondent. He remained married to the first respondent until his
death. The fact of this marriage
only came to the applicant’s
attention on 18 December 2018. Notwithstanding this knowledge, and
her statement to the deceased
that she would not marry him if the
first respondent did not consent to the marriage which, as a matter
of fact, the first respondent
did not do, she accepted the deceased’s
marriage proposal in August 2019. They became engaged, but before the
relationship
could be progressed, the deceased became ill and died in
December 2020.
[3] In
bringing this application, the applicant sought the following relief
in her notice of motion:
‘
1.
It is declared that a Universal Partnership existed between the
Applicant and the late Sylvester Ndoora
(hereinafter referred to as
‘the Deceased’).
2. Alternatively,
that the love relationship which existed between the Applicant and
the deceased
with its consequential purported marriage engagement
entered into between them in or during August 2019 at Sun City,
North-West
Province, is hereby declared to be a putative marriage.
3. That
the Applicant is hereby entitled to fifty (50) percent of the joint
estate accumulated
by the Applicant and the deceased mentioned in
paragraph 1 hereinabove.
3. [sic]
Alternatively, the love relationship which existed between the
Applicant and the deceased
and the purported marriage engagement
entered into between the Applicant and the deceased on the date and
place referred to above
is here by declared to be a Universal
Partnership.
4. That
the Applicant is hereby entitled to fifty (50) precent of the estate
of the Deceased,
alternatively, half of the assets that were
accumulated by the Universal Partnership.
5. Alternatively,
that the estate of the deceased was unduly and unfairly enriched (and
the estate
of the Applicant was equivalently unduly diminished
thereby) and that the Applicant is entitled to be compensated
therefore.
6. That
in the event of the First Respondent opposing this application, it is
ordered that the
First Respondent shall pay the Applicant’s
costs of this application.’
[4]
At
the hearing, the applicant was represented by Mr Kwitshana and the
first respondent was represented by Ms van Jaarsveld. When
the matter
was called, Mr Kwitshana commenced his argument. He had not
progressed very far when the court enquired from him whether
he was
content to argue the matter in the light of the first respondent’s
submissions that there were disputes of fact incapable
of being
resolved on the papers.
[2]
This
was asked because Mr Kwitshana indicated in his practice note that
there were no disputes of fact. He indicated that he was
ready to
argue the matter on the papers but thereafter waivered, and indicated
that it might be preferable to refer the matter
to oral evidence. At
this juncture the court asked Ms van Jaarsveld what her attitude to
the issue was. In brief, she stated that
this matter should never
have been brought on application but should have been brought on
action. The applicant having made her
election to proceed by
application, the first respondent opposed the referral of the matter
to oral evidence. Mr Kwitshana then
asked for an opportunity to
consider his position and take instructions. The matter accordingly
stood down.
[5] Mr
Kwitshana advised the court when it reconvened that he was now making
an application for the matter to be
referred to oral evidence. After
hearing argument, I exercised my discretion and refused the
application with costs and said that
I would give my reasons later.
What follows are those reasons.
[6]
In
Kalil v
Decotex (Pty) Ltd and another
,
[3]
the court held that a court hearing an application for referral of an
application to oral evidence has a discretion as to whether
or not to
allow this to occur. In expanding upon this, the court stated:
‘
Naturally, in
exercising this discretion the Court should be guided to a large
extent by the prospects of
viva
voce
evidence
tipping the balance in favour of the applicant. Thus, if on the
affidavits the probabilities are evenly balanced, the Court
would be
more inclined to allow the hearing of oral evidence than if the
balance were against the applicant. And the more the scales
are
depressed against the applicant the less likely the Court would be to
exercise the discretion in his favour.’
[4]
[7] In
the view that I took of the matter, and as will become apparent later
on in this judgment, the applicant
had made out an extremely weak
case on the merits. There was no question of the probabilities being
evenly balanced: they were
tipped substantially against the
applicant.
[8] On
a procedural level, no application papers had been prepared in
support of the application for the referral
sought by the applicant.
The application was made orally from the bar and was clearly a last
minute effort. No draft order identifying
the issues to be resolved
by the hearing of oral evidence, the procedure to be followed and
which rules of the Uniform Rules of
Court would be applicable was
handed up, as is usually the practice. When I asked about this, I was
advised by Mr Kwitshana that
the issues would be as identified in the
first respondent’s counsel’s practice note. There was a
fundamental difficulty
with this submission. Two points of conflict
were identified in the first respondent’s practice note: a
dispute over the
financial standing of the deceased’s
businesses at the time that the applicant met him and a further
dispute over the improvements
made to an immovable property owned by
the deceased and the first respondent. Mr Kwitshana, however,
indicated that the dispute
centred on whether there was a universal
partnership between the applicant and the deceased. Yet that was not
the issue that would
be referred to oral evidence, based upon what Mr
Kwitshana indicated to me. There was thus no consensus on what the
disputes of
fact were. Importantly, there was no indication from the
applicant as to which of the contentions of the first respondent in
her
answering affidavit could potentially be successfully discredited
by oral evidence nor was I told what evidence would be led to
establish this. And at the final moment, Mr Kwitshana indicated that
he now desired that the matter be referred not to oral evidence,
but
to trial.
[9] In
short, the application was poorly conceived and poorly motivated. It
was accordingly refused with costs.
The actual application was then
argued.
[10] Before
the matter proceeded further, the relief for a declaratory order that
a putative marriage existed between
the applicant and the deceased
was abandoned by Mr Kwitshana. Accordingly, the issues that fall to
be determined are whether a
universal partnership existed between the
applicant and the deceased and, in the alternative, whether the
deceased’s estate
was enriched to the detriment of the
applicant’s estate.
[11]
In
South Africa, generally speaking, if co-habiting parties are not
married to their partner, neither has any claim to the other’s
assets. Co-habiting parties can, however, agree to certain
obligations, such agreement being either express or tacit.
[5]
Cohabitation itself ‘does not give rise to special legal
consequences’.
[6]
However,
courts in this country have recognised that, what is termed a
‘universal partnership’, may exist between two
unmarried
parties. This recognition has its foundation in Roman and Roman-Dutch
law. In Roman and Roman Dutch law, universal partnerships
were
distinguished into two types: firstly, those of all present and
future property, termed
societas
universorum bonorum
;
and, secondly, those extending to everything acquired from every kind
of commerce entered into during the existence of the partnership,
termed
societas
universorum quae ex quaestu veniunt
.
[7]
[12]
In
Pezzutto
v Dreyer
,
[8]
the essentials of a universal partnership were said to be the
following:
‘
(1)
that each of the partners bring something into the partnership,
whether it be money, labour or skill; (2) that the
business should be
carried on for the joint benefit of the parties; and (3) that the
object should be to make a profit.’
[9]
[13]
These
requirements are not specific to the consideration and assessment of
whether a universal partnership existed: these are the
requirements,
generally, when considering whether a partnership came into
existence. Our courts have found it unnecessary to develop
a separate
test specific to the assessment of universal partnerships.
[10]
[14]
A
universal partnership of all property does not require an express
agreement to this effect to have been concluded.
[11]
A tacit ‘universal partnership exists when parties act like
partners in all material respects without explicitly entering
into a
partnership agreement’.
[12]
A tacit agreement is one in which it may be inferred from the conduct
of the parties that they intended to enter into such a contract.
However, tacit agreements are not readily inferred. As was stated in
Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial
Administration
:
[13]
‘
[The court] cannot
make contracts for people; nor can it supplement the agreement of the
parties merely because it might be reasonable
to do so. Before it can
imply a tacit term the Court must be satisfied, upon a consideration
in a reasonable and businesslike manner
of the terms of the contract
and the admissible evidence of surrounding circumstances, that an
implication necessarily arises that
the parties intended to contract
on the basis of the suggested term. . .’
[14]
[15]
Until
relatively recently, there were competing tests that were applied
when considering whether a tacit agreement had come into
existence.
The two approaches encompassed, firstly, the more traditional
formulation, namely that it was necessary to show on a
preponderance
of probabilities that unequivocal conduct existed which was capable
of no other reasonable interpretation than that
the parties intended
to, and did in fact, contract on the terms alleged. Secondly, that a
court could hold that a tacit contract
had been established where, by
a process of making inferences, it concluded that the most plausible
conclusion from all the relevant
proven facts and circumstances was
that a contract had come into existence. In 2019, in
Buffalo
City Metropolitan Municipality v Nurcha Development Finance (Pty) Ltd
and others
[15]
,
the Supreme Court of Appeal held that the test was that ‘the
party alleging a tacit contract need prove unequivocal conduct
giving
rise to an inference of consensus on a balance of probabilities’.
[16]
[16]
‘A
universal partnership exists if the necessary requirements for its
existence are met . . . regardless of whether the parties
are
married, engaged or cohabiting’.
[17]
The essence of the concept of a universal partnership is an agreement
about joint effort and the pooling of risk and reward. A
universal
partnership is, effectively, a community of property.
[18]
As was said by the Supreme Court of Appeal in
Khan
v Shaik
:
[19]
‘
Upon termination
of the universal partnership, what follows is an accounting to one
another; the poorer partner becomes the richer
partner’s
creditor. Accordingly, it is the contract that is the foundation of
the universal partnership, not the mere fact
of the consortium and
the mere contributory efforts to building wealth.’
[20]
[17]
Ms
van Jaarsveld, as previously pointed out, indicated that there were
disputes of fact in this matter. In making that submission,
she was
indeed correct. Those disputes of fact extend past the areas of
dispute identified in the first respondent’s practice
note. In
National
Director of Public Prosecutions v Zuma,
[21]
the court pointed out that
'Motion proceedings,
unless concerned with interim relief, are all about the resolution of
legal issues based on common cause facts.
Unless the circumstances
are special they cannot be used to resolve factual issues because
they are not designed to determine probabilities.’
The
court mentioned further in
Zuma
that
the correct approach to resolving factual disputes is set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd.
[22]
That matter held that when factual disputes arise in circumstances
where the applicant seeks final relief, the relief should be
granted
in favour of the applicant only if the facts alleged by the
respondent in its answering affidavit, read with the facts
it has
admitted to, justify the order prayed for. Put differently, the rule
allows a court, in certain circumstances, to make a
determination on
disputes of fact in application proceedings without having to hear
oral evidence and on the respondent’s
written version of
events.
[18] Not
all the facts in this matter are in dispute. It is common cause that
the applicant is employed by a prominent
bank in South Africa as a
business advisor. The deceased was a geo-hydrologist by training but
appears to have business interests
that extended beyond the
profession in which he had been formally trained. The fact that the
deceased and the first respondent
were married to each other on 29
September 1998 in Zimbabwe is accepted, as is the fact that they
thereafter came to South Africa.
The applicant does not dispute that
the first respondent is a nurse employed at the Stanger Hospital.
[19] Many
of the facts alleged by the applicant are, however, disputed by the
first respondent. The applicant contends
that at the time that she
became involved with the deceased, he lived alone at a home that he
owned in the suburb of Bisley in
Pietermaritzburg (the Bisley house).
This is not admitted by the first respondent. She states that she and
the deceased jointly
owned the Bisley house and concedes that the
deceased did stay there when doing business in Pietermaritzburg.
However, the first
respondent states that the deceased’s home
was with her in Stanger at their matrimonial home.
[20] The
applicant claims to have resided separately in a rented flat in
Alexander Road, Pietermaritzburg ‘at
all material times’.
This is an interesting statement that is contradicted by her at a
later stage. According to the applicant,
as the deceased and her
relationship strengthened, the deceased advised her in January 2016
to purchase a plot of vacant land in
order that she might build a
family home to accommodate her, the deceased and her two minor
children born of another relationship.
The applicant did not explain
why this needed to be done in the light of the fact that the
deceased, on her own version, already
had a home in which he resided
alone. He had not disclosed at this time to the applicant that he was
already married. The applicant
duly purchased the plot of land for
R15 000. The applicant acerbically points out that
‘
. . . the deceased
never contributed a cent towards the purchase and/or building of the
same property, I paid for everything with
my own money.’
The
applicant then built a dwelling on the property. The applicant
asserts, again, that all material times she, the deceased and
her
children resided at the newly constructed house. This conflicts with
her earlier statement that at all material times she resided
in the
flat in Alexander Road.
[21] Importantly,
the applicant concedes that the deceased never told her that he was
married to the first respondent,
nor that he was involved in love
relationships with other women. He passed himself off as a single,
unmarried man. The applicant
claims that the deceased, however, did
disclose that he had six children from former girlfriends but stated
that he no longer had
a relationship with the mothers of those
children. He was not truthful in this regard: he had eight children.
He never introduced
the applicant to any of his children.
[22] As
regards her contribution to the success of the deceased, the
applicant asserts that she
‘
. . . contributed
immensely in recurpurating [sic] his business by using my
professional skills and expertise, viz:
261. [sic] by
providing and assisting with business networking with potential
business people;
26.2
business administration and management skills;
26.3
assisting in filling of potential tender documents;
26.4
assisting in accounting and auditing skills of the business;
26.5
assisting in advising of relevant and necessary professional business
consultants, to do
audit reports, etc.
26.6
At times, during my spare time, I would be hands on, alternatively
directly involved in
the operations of his business on site level.
26.7
Likewise, I was personally responsible for his personal image and
health upkeep and well-being,
viz, type of clothes to wear, food and
medical realm, etc.’
As a result of the
alleged application of these skills, the applicant submits that the
deceased’s business ‘grew exponentially.’
[23] The
first respondent states in her answering affidavit that the deceased
was a successful businessman who
had provided well for his family
over the years prior to his involvement with the applicant. This
continued to be the case after
his involvement with her commenced. He
was a director and shareholder of five businesses.
[24] The
allegations by the applicant of her contribution to the success of
the deceased are allegations bereft
of any detail: there is no
particularity as to which businesses she provided advice to, nor does
she disclose what ‘networking’
means, who she directed
the deceased to network with or what the benefits of doing it were,
or what business administration and
management skills she utilised
and to what effect. No details of what such exponential growth
amounted to is disclosed. No evidence
to demonstrate the financial
growth claimed by the applicant due to her efforts has been
disclosed: instead, the applicant requires
the court to merely accept
her word that this is what occurred.
[25] The
first respondent points out that the deceased was a customer of the
same bank as that which employed the
applicant, and if any advice was
given to the deceased, it is conceivable that it was advice that the
applicant was obligated to
provide arising out of her employment. The
first respondent does, fairly, however, acknowledge that it appears
that the applicant
did render certain services to a company owned by
the deceased, called Ruvhetha Engineering (Pty) Ltd, over the period
July 2016
to December 2018. She was, however, according to the first
respondent, paid for these services. This appears to be correct. In
this regard, the first respondent puts up approximately 120 pages of
bank statements of that company. I have perused each of those
pages.
The total of the payments made to the applicant by that company comes
to approximately R733 000. The overwhelming majority
of the
individual payments that collectively comprise that amount have the
narration that the payments were made to the applicant
for
‘services’.
[26] The
applicant claims that she made the following further contributions to
the deceased’s estate:
(a) she
spent R210 000 of her own money on the renovation of the deceased’s
Bisley house;
(b) she
assisted the deceased on the choice of furniture to buy for that
house and did the interior
decorations at the house;
(c) she
provided the deceased with advice to purchase a property in Umhlanga
Rocks;
(d) she
advised him on purchasing a property in Hayfields in
Pietermaritzburg;
(e) she
told the deceased to consult doctors arising out of his diabetic
condition;
(f) she
made sure that the deceased took his medicine;
(g) she
ensured that the deceased insured his assets; and
(h) she
ensured that the deceased was on a medical aid scheme.
[27] Not
all of these allegations require comment. Most of the allegations are
neutral in their meaning and would
be the sort of conduct expected of
two people in an intimate relationship. The first respondent,
however, denies virtually all
these allegations:
(a) on
the issue of the R210 000 allegedly spent by the applicant on the
deceased’s home, the applicant
puts up certain invoices to
establish this point. The invoices are, however, non-specific
invoices that one receives when making
a purchase from a store: they
do not record the name of the customer and are simply till generated
recordals of the items purchased.
They certainly do not record who
made the payment. It is thus not possible to verify who did so. There
are 11 such invoices. One
falls outside the period specified by the
applicant when she allegedly incurred these expenses and is therefore
not considered.
The total of the remaining invoices comes to R24
297.38. This falls far short of the amount which the applicant claims
to have
spent out of her own purse;
(b) on
the issue of the purchase of furniture and interior decorations for
the Bisley house, the first respondent
disputes the applicant’s
allegations. She states that when she went to that house to collect
the deceased’s clothing
after his death, she noted that the
house was decorated exactly as she and the deceased had decorated it
in 2014;
(c) the
purchase of the property in Umhlanga Rocks mentioned by the applicant
failed and was not advanced
to transfer;
(d) the
first respondent disputes further that the applicant was an
innovating force in securing the insurance
of the deceased’s
assets: she asserts that all their assets had been insured since
2004, long before the deceased’s
involvement with the
applicant, and puts up documentary proof of that; and
(e) regarding
the allegation that the applicant was instrumental in getting the
deceased onto a medical
aid plan, she states that by virtue of her
employment as a nurse she was entitled to join a medical aid scheme.
The deceased became
a dependent member on her medical aid scheme in
2011. In 2020, the deceased wanted to add a son of his, born of
another woman,
to the medical aid scheme, but the first respondent
refused to countenance this. The deceased thereafter left her medical
aid scheme
and took out his own medical aid policy in order to
include his son. There was no involvement of the applicant in this.
She puts
up documentation confirming that the deceased had been a
member of her medical aid scheme.
[28] The
denials of the applicant’s allegations by the first respondent
are not bald or uncreditworthy denials
nor are they palpably
far-fetched or so clearly untenable that they can simply be rejected
on the papers. Some of the denials are
backed up with documentary
proof. I therefore cannot find that they are conjured up in order to
create a false conflict of fact.
I am accordingly required to accept
the facts alleged by the first respondent.
[29] The
applicant makes further allegations about being taken to Zimbabwe on
at least four occasions by the deceased,
the first time to to be
introduced to his family, about being given a Honda motor vehicle by
the deceased as a birthday present
in December 2018, about accepting
his proposal to marry at Sun City in August 2019 and about the IVF
procedure undertaken in order
to conceive children with the deceased.
In my view, these events do not progress the applicant’s claim
to the existence of
a universal partnership. These events simply
indicate a level of intimacy between the deceased and herself but do
not, in my view,
establish the universal partnership claimed by her.
[30] The
applicant at no stage states that there was an express agreement to
constitute a universal partnership.
She accordingly relies on a tacit
agreement. There are compelling facts that demonstrate that there was
no such agreement. These
facts, in the main, arise out of the
applicant’s founding affidavit. It was the existence of these
statements by the applicant
that caused me to come to the view that a
referral to oral evidence would not disturb the probabilities in the
applicant’s
favour. At various places in her founding affidavit
the applicant makes the following comments about the deceased and his
conduct:
(a) he
had ‘blindfolded’ her;
(b) he
was dishonest and evasive at all material times;
(c) he
had done ‘marriage hoodwinking ploys’ on her in order to
‘exploit’ her
life;
(d) by
proceeding with the IVF procedure, the deceased perpetrated a ‘blind
sighting [sic] and
wastage of my life and emotions’;
(e) ‘As
part of his wicked scheme’, the deceased took out life cover
for the Hayfields property
and made the beneficiary his daughter born
of the first respondent;
(f) the
deceased ‘had been using me as his mule to enrich himself
through exploiting my
position, power and influence’; and
(g) ‘Judging
by the modus operendi [sic] by which the deceased had been
hoodwinking me, it is glaringly
evident that, he had premeditated his
wicked scheme to exploit my vulnerability of being a single and
unmarried person and duped
me with bogus marriage plans and
preparations . . . ’
[31] These
are the applicant’s own words. These are not words indicative
of a person who has formed an understanding
with his partner. If her
description of the deceased’s conduct is accurate, such conduct
is not reconcilable with an intent
to pool assets. In fact, they
point to a contrary conclusion. It is difficult to conclude therefrom
that she and the deceased had
tacitly agreed to the creation of a
universal partnership. The deceased had not played open cards with
the applicant until much
later in their relationship, and it appears
improbable that he would have committed himself as contended for by
the applicant.
A universal partnership does not appear to accord with
the deceased’s freewheeling lifestyle. The only person that he
had
any fixed arrangements with was his wife, the first respondent.
[32] But
there are additional factors that militate against the establishment
of a universal partnership:
(a) the
applicant was required to purchase the vacant plot of land and fund
the construction of the
dwelling without financial assistance from
the deceased. That does not appear to be consistent with a man who
has agreed to pool
his assets;
(b) the
Honda motor vehicle given to the applicant as a birthday present was
never registered in her
name but remained in the name of one of the
deceased’s businesses, where it was insured not for personal
use but for business
use. It would appear to not have been a gift but
merely an entitlement to use the vehicle; and
(c) there
is no evidence that the deceased ever put the applicant or her
children onto his medical
aid scheme after leaving the first
respondent’s medical aid scheme.
[33] Rather
than pooling assets, it appears from the aforegoing that the deceased
retained control of his assets
and kept their respective assets
separate. He also kept the true state of his personal life from the
applicant. From a consideration
of these factors, and particularly
her own statements about the deceased and his conduct, I conclude
that the applicant has not
proved unequivocal conduct giving rise to
an inference of consensus on a balance of probabilities that she and
the deceased entered
into a tacit universal partnership.
[34]
As
regards the applicant’s enrichment claim, the starting point is
that there is no general enrichment action in our law.
[23]
The law, however, does provide recourse to a person ‘who
believes he has unjustly enriched another person for the disgorgement
of the benefits’.
[24]
The quantum of the enrichment is established by determining the
extent of the impoverishment and the extent of the enrichment.
The
impoverished party is then entitled to the lesser of the two amounts
so determined.
[35] The
essential elements are that:
‘
(a)
the
defendant must be enriched,
(b)
the
plaintiff must be impoverished,
(c)
the
defendant's enrichment must be at the expense of the plaintiff and
(d)
the
enrichment must be without cause (
sine
causa
).’
[25]
The
burden of proof in respect of these elements is on the plaintiff.
[26]
[36] In
her notice of motion, there is no allegation of the quantum of the
enrichment that the deceased’s
estate is alleged to have
profited by nor has the value of the reduction in the applicant’s
estate been quantified. If the
quantum of the enrichment is merely
the amount of R210 000 which the applicant allegedly spent on the
deceased’s Bisley house,
then she has not established that
amount, as previously pointed out. The documentation allegedly
supporting the expenditure by
her of the sum of R210 000, which
documentation is not conclusive of the fact that she personally made
those payments, comes to
one tenth of that value. I am, however, by
no means certain that this constitutes the entire value of the
alleged enrichment. But
I cannot be sure. It is for the parties to
properly plead their cases and not for the court to speculate what
that case is. The
enrichment claim is not properly pleaded and like
the claim for the declaration of the existence of a universal
partnership, it,
too, must perish.
[37] In
the circumstances I make the following order:
1. The
application to refer the matter to the hearing of oral evidence is
refused with costs;
and
2. The
application is dismissed with costs.
MOSSOP AJ
APPEARANCES
Counsel
for the appellant: Mr
A. M. Kwitshana
Instructed
by: LLM
Attorneys Inc
51A
Maud Avenue
Scottsville
Pietermaritzburg
Counsel
for the respondent: Ms M. E. van
Jaarsveld
Instructed
by: Lister
and Lister Attorneys
Suite
no. 101
First
Floor
161
Pietermaritz Street
Pietermaritzburg
Date
of Hearing: 12
November 2021
Date
of Judgment: 1
December 2021
[1]
Being a person, usually a man, who has many casual sexual encounters
especially when married or in a committed relationship
(https://
www.dictionary.com/browse/philanderer#
).
[2]
In
Law
Society, Northern Provinces v Mogami and others
2010
(1) SA 186
(SCA) at 195C-D, Harms DP stated that ‘An
application for the hearing of oral evidence must, as a rule, be
made in limine
and not once it becomes clear that the applicant is
failing to convince the court on the papers or on appeal’.
[3]
Kalil v
Decotex (Pty) Ltd and another
1988
(1) SA 943 (A).
[4]
Ibid at 979H-I.
[5]
McDonald
v Young
[2011]
ZASCA 31
;
2012 (3) SA 1
(SCA) para 19.
[6]
Butters
v Mncora
[2012]
ZASCA 20
;
2012 (4) SA 1
(SCA) para 11.
[7]
Isaacs
v Isaacs
1949
(1) SA 952
(C) at 955.
[8]
Pezzutto
v Dreyer and others
1992
(3) SA 379 (A).
[9]
Ibid at 390A-B.
[10]
Butters
v Mncora
,
supra
,
para 17.
[11]
Butters
v Mncora
,
supra
,
para 18(b);
Festus
v Worcester Municipality
1945
CPD 186.
[12]
Steyn v
Hasse and another
2015
(4) SA 405
(WCC) para 17.
[13]
Beadica
231 CC and Others v Trustees for the time being of the Oregon Trust
and Others
2020
(5) SA 247
(CC) para 135, footnote 259, citing with approval the
dicta of Corbett AJA in
Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1974
(3) SA 506 (A).
[14]
Ibid at 532533.
[15]
Buffalo
City Metropolitan Municipality v Nurcha Development Finance (Pty)
Ltd and others
[2018]
ZASCA 122
;
2019 (3) SA 379
(SCA).
[16]
Ibid paras 16 and 20 to 21.
[17]
Ponelat
v Schrepfer
[2011]
ZASCA 167
;
2012 (1) SA 206
(SCA) para 22.
[18]
Sepheri
v Scanlan
2008
(1) SA 322
(C) at 338C-D.
[19]
Khan v
Shaik
[2020]
ZASCA 108.
[20]
Ibid para 8.
[21]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 26.
[22]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C.
[23]
Nortje
en ‘n ander v Pool, NO
1966
(3) SA 96 (A).
[24]
Fidelity
Supercare Services Group (Pty) Ltd v Johannesburg Metropolitan
Police Department
[2013]
ZAGPPHC 6 para 20.
[25]
McCarthy
Retail Ltd v Shortdistance Carriers CC
2001
(3) SA 482
(SCA) para 2.
[26]
Willis
Faber Enthoven (Pty) Ltd v Receiver of Revenue and another
[1991] ZASCA 163
;
1992
(4) SA 202
(A) at 224H-J;
Senwes
Ltd and others v Jan Van Heerden & Sons CC and others
[2007]
ZASCA 18
;
[2007] 3 All SA 24
(SCA) para 35.