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[2020] ZAGPPHC 34
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R.K v A.K and Others (2369/2013) [2020] ZAGPPHC 34 (7 February 2020)
SAFLII
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Certain
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HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
YES
CASE
NO: 2369/2013
7/2/2020
In the matter
between:
R.
K[….]
Plaintiff
and
A.
K[….] First Defendant
GLOBAL
PLANTS AND DISTRIBUTORS CC
Second Defendant
QUELLAND
ESTATE PTY
LTD
Third Defendant
DELTROSIZE
PTY LTD
Fourth
Defendant
JUDGMENT
1.
The
plaintiff instituted a divorce action against the first defendant
during January 2013 which was responded to by the defendant
in the
form of a plea and a counterclaim. The defendant joined the second,
third and fourth defendants to the action. I shall refer
to the first
defendant as “the defendant" and to the other defendants
by their respective names.
2.
In
the counterclaim the defendant pleaded the existence of a universal
partnership between herself and the plaintiff and consequently
claimed the appointment of a Receiver with the power to establish the
assets obtained by the parties as a result of the operation
of
Wonderboom Kwekery, Arks Pty Ltd and Global Plants Pty Ltd and their
involvement in the plant industry, submission of a distribution
account to the parties, the debatement of the account and payment to
the defendant of what is due to her. The defendant also claimed
maintenance in the amount of R2 million in respect of resettlement
plus R 30,000.00 per month together with medical expenses.
3.
At
the commencement of the trial the parties were ad idem that the three
issues in dispute were the following: firstly, whether
a verbal,
alternatively, a tacit universal partnership was formed between the
parties during August 1995 as claimed by the defendant;
secondly, the
issue of spousal maintenance, the principle, quantum and duration
thereof, as claimed by the defendant; and, thirdly,
the costs of the
action.
4.
The
parties were in agreement that the onus of proof as well as the duty
to begin, were on the defendant. The defendant herself
testified and
also presented the evidence of Mr M Malatjie and Mr D Hawthorne. The
plaintiff testified on his own behalf. The trial
lasted many days and
it would serve no purpose to try and summarise each witness' evidence
and evidence in cross examination. I
shall endeavour to refer to the
salient features relevant to the issues to be decided.
5.
The
parties were married to each other on 22 February 1997 with an
antenuptial contract expressly excluding community of property
and
the accrual system. The relevant part of the antenuptial contract
provided that the parties contracted with each other as follows:
"1.
Oat daar geen gemeenskap van geed tussen hulle sal
wees
nie.
2.
Oat daar geen gemeenskap van wins en
verties tussen hulle sal wees nie.
3.
Oat
die aanwasbedeling waarvoor daar ingevolge Hoofstuk I van die Wet op
Huweliksgoedere 1984 (Wet no 88 van 1984) voorslening gemaak
word,
uitdruklik uitgesluit word.
EN die genoemde RICARDO KUISIS en
ANNELINE SWANEPOEL het belowe en ooreengekom om die voorgenome
huwelik op bogemelde voorwaardes
te voltrek, en om in die gees van
hierdie kontrak te handel ender verpligting van hulle persona en
eiendom volgens Wet."
6.
Two
children were born from the marriage between the parties and are
already majors. The plaintiff has and will continue to contribute
to
the children's maintenance needs insofar as it might still be
necessary. The parties were in agreement that no order in this
regard
needs to be made.
7.
The
plaintiff was married to his first wife during 1980 in community of
property and they finally got divorced during the middle
of 1996. The
plaintiff grew up in the nursery and plant industry which he
conducted with his father and has been involved in the
plant industry
for all his life. There is no doubt that he is an expert in the trade
and more specifically in respect of instant
garden plants which
mainly involve large plants and trees. The bulk of his business
relates to the exporting of big trees and other
plants which he has
been doing since 1983. This entails the sourcing of trees from over
the country, the digging out, preparing
and packing and treatment of
the trees for purposes of transport or export and the replanting
thereof. This is a specialised industry
and it was not in dispute
that the plaintiff is an expert in this regard. He exported products
to countries in Africa, Cyprus and
countries in the Far East.
8.
Since
1981 the plaintiff had a 25% share in the company Quelland Estates
Pty Ltd and since 1983, a 100% shareholding in Praetorium
Pty Ltd.
These were the companies through which he did his business. During
1985 the plaintiff had a 50% shareholding in Quelland
and in December
1996 he purchased the other 50% shareholding which belonged to his
brother. The defendant signed this contract
as a witness. This
purchase was funded with money which became available from a family
trust after the passing of plaintiffs father
and of which the
plaintiff was a beneficiary. Since 1987 the plaintiff was involved in
a similar business by the name of Belle
Ombre. In respect of the one
outlet of this business he had a 10% interest in turnover and stock
and in respect of the other outlet
he had a 30% interest
9.
During
approximately 1994 the plaintiff met the defendant. From 1990 to 1995
she had worked in her uncle's nursery until she resigned.
During
September 1995 the company Arks Pty Ltd was registered with the
defendant as the sole shareholder. Arks was involved in
bigger plants
and trees. During December 1995 Arks purchased Wonderboom Kwekery.
The defendant worked at Wonderboom Kwekery while
the plaintiff
continued with his other businesses.
10.
Later
during 1995 Arks purchased a Biscuit Kings business and sometime
later a second one. During 1996 Arks also purchased a flat
in
Pretoria. On 22 February 1997 the parties were married. During the
same year they moved to the farm Frischgewaad near Tzaneen.
The farm
had belonged to Quelland Estate since 1981. Quelland Estate sold the
farm in 2014. Currently Quelland Estate has no assets.
11.
According
to the defendant the alleged partnership with the plaintiff came into
existence during August 1995, i.e., one and a half
years before they
entered into marriage. According to the defendant the result of this
partnership agreement was the registration
of Arks during August 1995
which was the vehicle through which the assets of the parties were
purchased and through which business
was conducted. A further result
was the purchase by her during December 1995 of Wonderboom Kwekery
which she said was the origin
and basis upon which all subsequent
businesses and interests were obtained by the parties. She further
stated that the purchase
during December 1995 of the 50% shareholding
in Quelland Estate was also funded by Arks. Furthermore the company
which was registered
during 1995 namely Global Plants Pty Ltd, of
which the plaintiff was the sole shareholder, and which did similar
business to Arks,
was also the result of this partnership.
Furthermore the company Deltrosize Pty Ltd was registered with the
plaintiff as the sole
shareholder and which also did similar business
to Arks. The aforesaid was disputed by the plaintiff and I shall
refer thereto
below.
12.
The
plaintiff testified about the role that she played In the businesses.
She did the invoices and especially after they moved to
the farm, she
saw to the operations when the plaintiff was away. According to her
she was very involved with the businesses.
13.
The
defendant pleaded that a
universorum
quae ex quaestu veniunt
came into
being between the parties in respect of the business they and/or Arks
and/or Global Plants conducted in the plant industry.
It was
consequently the defendant's case that she is entitled to half of the
assets of the plaintiff and the aforesaid entities.
14.
The
four requisites of a partnership are trite. Firstly, each of the
partners must bring something into the partnership or bind
themselves
to bring something into it, whether it be money or labour or
skill.
Secondly, it is essential that the
business should be carried on for the joint benefit of both parties.
Thirdly, the object should
be to make a profit. Finally, the contract
between the parties should be a legitimate contract.
15.
It
is also trite that the court must satisfy itself that there was
indeed
animus contrahendi
between
the parties and that the conduct from which a contract is sought to
be inferred, is not simply that which reflects what
is ordinarily to
be expected of a wife in a given situation. There must be something
to indicate that the parties intended to operate
as a partnership.
Especially where a tacit agreement is alleged, it must be clear that
the conduct relied upon is not only unequivocally
consistent with
consensus on the issue of the contract alleged, but is consistent
with no other reasonable interpretation. See
Muhlman v Muhlman
1991
(4) SA 632
(WLD); Joel Melamed and Hurwitz v Cleveland Estates Pty
Ltd
[1984] ZASCA 4
;
1984 (3) SA 155
(A).
16.
The
plaintiff testified that he is 64 years of age. He spoke about his
passion for agriculture and the plant and nursery industry.
He and
his brother and two friends initially formed a company and bought a
farm which was totally underdeveloped. This happened
soon after he
left school. They developed the farm and started off in the industry.
His success resulted in him establishing a
second company, Praetorium
Pty Ltd, which belonged to him alone. It is not necessary to refer
further to the history of the plaintiffs
ventures save to say that he
was very successful and also successful in landing extremely big
contracts not only in South Africa
but also abroad. That had been the
case to the present.
17.
He
also became involved in Belle Ombre, a business for whom he did
consultancy work. He eventually also established a plant production
line for this business and made them involved in exports. He obtained
a percentage in this business as well as its stock. While
he was
doing this, Quelland Estate continued with its exports especially to
the United Arab Emirates, China and Cyprus. He also
acted as
consultant to other nurseries. That was how he met the defendant who
was working for Wonderboom Nursery.
18.
According
to the plaintiff Arks was registered in September 1995 to give the
defendant an opportunity in the plant industry which
he thought she
understood and in respect of which he could also teach her a lot. The
type of business envisaged for Arks would,
in his view, have suited
the defendant and she should have been able to make a success and
have a very good income. According to
him she had the ability but
needed direction and financial control.
19.
The
plaintiff testified that 100% of the shareholding in Arks was
registered in the defendant's name for the reason that the business
was to belong to her alone. He had no loan account in the company and
the defendant alone had signing rights. Although he assisted
Arks in
many ways he and his companies did not benefit from such assistance.
20.
The
plaintiff testified that having been married on, as he called it, a
50% 50% basis, and having lost so much in the divorce, he
would under
no circumstances have entered into a marriage in community of
property or a marriage partnership or a shareholding
with somebody
who could be his future wife. The plaintiff went through a very long
and acrimonious divorce with his first wife
which lasted almost two
years and was finalised during the middle of 1996. He had been
married in community of property and his
first wife obtained 50% of
all his assets. He said that it was at all times his intention to
make absolutely sure that there would
in future be no mixing of his
own assets and that of a new spouse. It was mainly for that reason
that he remained the sole owner
of his own businesses and that when
he became married in 1997, he insisted that the regime of his
marriage would be out of community
of property and also with the
specific exclusion of the accrual system. The antenuptial contract
also specifically excluded any
community of profits and losses and
contained the rather unique provision that he and the defendant had
agreed and promised to
be married on that basis and to act in the
spirit of the agreement as far as their persons and property were
concerned.
21.
The
formation of Arks was consequently to set the defendant up in
business and to be hers alone. Regarding the purchase of Wonderboom
Kwekery by Arks in Desember 1995 the plaintiff testified that it was
the defendant's dream to manage a nursery and especially the
one
where she had worked for a long time. He said that he advised her and
helped her where he could but that the business belonged
to the
defendant alone. That is why it was purchased by Arks. This purchase
as well as the purchase of the flat in Pretoria early
in 1996 was
financed by money generated by Arks and Wonderboom Kwekery.
22.
Regarding
the purchase of his brother's 50% shareholding in Quelland Estate
during December 1996 the plaintiff testified that he
eventually paid
his brother from money received after his father's death from monies
due to him from the estate. The actual payment
was made some years
later. The defendant's evidence that Arks funded the purchase was
simply not true. Furthermore, he also still
had an income from his
other businesses.
23.
Regarding
the signing of the antenuptial contract during January 1997 the
plaintiff was adamant that he had been taught a very severe
lesson
with his previous marriage which had been in community of property.
He also testified that his attorney explained every
clause of the
contract to him and the defendant and that everything was clear. He
also testified that there was never any suggestion
that the
antenuptial contract would later be amended.
24.
The
plaintiff testified that by 1999 Arks was in serious financial
difficulty. He said that the company was simply not run properly
by
the defendant who had the skill to do the work but who lacked the
required financial knowledge. She also tended to be a spendthrift
instead of understanding the need for building up savings. In order
to prevent the loss of the flat in Pretoria he eventually caused
Quelland Estate to secure the debt of Arks.
25.
ln
respect of the defendant's evidence that Global Plants was just a
continuation of Arks, the plaintiff denied this and testified
that
this close corporation was registered as a result of contracts which
he had obtained and because his experience taught him
that he could
not do his exports in the name of the property holding company. From
that time on, sales and exports abroad were
no longer done by
Quelland Estate but by Global Plants CC.
26.
The
plaintiff denied that there was ever any suggestion that the
defendant would have a share, or be a member, of Global Plants.
The
plaintiff said that the defendant did assist him and was helpful, but
no more than would have been done by a secretary or anyone
else. She
sometimes helped with invoices and wages or helped when there was a
crisis, or would sometimes give instructions to employees,
but this
was not on a continuous basis. He sourced clients and concluded
contracts through Global Plants and Deltrosize. The plaintiff
was
emphatic that although the defendant did do a few functions of the
business and assisted when he was not around, she did not
administer
and manage the businesses. She was not part of the administration and
management of the businesses. The defendant conceded
that she never
participated in the decision-making processes in the plaintiff's
businesses and that he was the one who took those
decisions. He did
all the paperwork and the defendant had no access to any of his
accounts, including that of Global Plant and
Deltrosize.
27.
The
defendant testified that she should have been a member of Global
Plants but that the plaintiff said that he did not have her
identity
document when he went to the auditors to register the close
corporation. She said that she trusted the plaintiff as they
did
everything together. This evidence of the defendant did not convince.
If they had really regarded themselves as partners, and
also as,
according to her version, Global Plant was to take over the
activities of Arks, one would not have expected the presence
or not
of an ID book to be relevant and the defendant would most certainly
have taken the matter up with the plaintiff to see to
it that the
situation was rectified.
28.
The
plaintiff testified that the defendant had no knowledge of the
growing of plants, the wholesale production of plants, preparation
and relocation thereof. Her knowledge was in the retail nursery
business. When asked whether Arks contributed anything to the other
entities, the plaintiff said that the truck and trailer, which had
very little commercial value, was used for a short period and
then
went to the defendant's brother. The plants belonged to Quelland.
Other plants required for his contracts, were sourced from
outside.
The plaintiff testified that it was in fact Quelland and Praetorium
which assisted and supported Arks, and not the other
way around.
29.
The
plaintiff also testified that profits were never shared with the
defendant. She could also not make any drawings on any of the
accounts of the businesses. She shared in an indirect fashion by
sharing in the household. He would give the defendant money to
purchase whatever was necessary or would make deposits into her
account.
30.
The
plaintiff also denied the defendant's evidence that Wonderboom
Kwekery gave the start to his subsequent businesses. He referred
to
his history and what he had done before. He described the defendant's
evidence as nonsensical and said that Wonderboom Kwekery
couldn't be
and was not the start of his life. His vast knowledge and extensive
contacts which had been developed since 1982, were
the reasons for
his success and his further business ventures.
31.
The
plaintiff also denied the defendant's evidence that the business of
Global Plants CC was the same as that of Arks. He said it
was similar
but not the same. The idea was that on the long-term the defendant
would do the work locally with Arks while he would
handle exports
with Global Plants. Unfortunately the defendant did not make a
success of Arks and the plaintiff said that if he
had to Involve
himself with Arks, he would probably have lost his exports and, in
any event, Arks could hardly have been in competition
with Global
Plants.
32.
During
2002 the parties' marriage went through a rough patch and the
defendant commenced a divorce action. At the time there was
no
suggestion that there had ever been any sort of partnership between
them. The parties did not proceed with that action.
33.
Between
2002 and 2004 the defendant sold the flat which belonged to Arks. The
defendant controlled the proceeds and the plaintiff
had no knowledge
thereof. In 2005 the defendant and her sister opened a retail nursery
in Phalaborwa but that was not a success.
The plaintiff had nothing
to do with that venture.
34.
Regarding
the formation of Deltrosize Pty Ltd during 2011 the defendant
explained that the scope of his work was such that he needed
a
company and not a close corporation and also a company that was BEE
compliant. On the recommendation of his auditor, this new
company was
established. The plaintiff held 100% of the shares. From that time on
he did his exporting through Deltrosize and is
still doing so at
present. The defendant was never any part of this company. She did
assist with invoicing and some paperwork and
marketing, but her input
was minimal.
35.
Regarding
a stock list written by hand by the plaintiff apparently during
November 1996 which, according to the defendant, showed
the assets of
Arks and what was taken over by Global Plants in 1999, the plaintiff
testified that he can't really remember this
document and it could
have been scribbling for purposes of a budget. What he could say was
that the assets on the list did not
all belong to Arks. For example,
the plants on the list belonged to Quelland Estate and not Arks. 80%
to 90% of the plants were
growing on the farm of Quelland Estate and
some were approximately 10 years old. Others were on other premises.
The trailer which
was mentioned belonged to the defendant's father
who allowed them to use his truck and trailer. The trailer remind
behind. The
tractor which was mentioned and the tools, all belonged
to Quelland Estate. The 300 Cycads mentioned was obtained by the
plaintiff
in the 1980s. There was also no mention of the stock and
plants of the Wonderboom Kwekery which belonged to Arks, except for
the
trailer. In any event, Global Plants was only established
approximately three years later in 1999 and could not have been
relevant
at the time. It is not insignificant that it was unknown
what the page referred to really was and the fact that there were
obviously
pages missing from the document of which it formed a part.
No inferences can be drawn from this document.
36.
According
to the plaintiff his relationship with the defendant deteriorated
during 2011 and 2012. It is not necessary to refer to
his or her
evidence in this regard. Regarding the defendant's evidence that
during November 2012 the plaintiff had agreed to amend
the
antenuptial contract, the plaintiff denied this and said that he
would never have done anything to that effect After all, according
to
the timeline, that would have happened approximately two days before
he moved out of the house for the last time, and it would
have been
highly unlikely for him to have done any such thing.
37.
During
2014 the plaintiff registered a new company Onicasat Pty ltd through
which he purchased a farm in the Western Cape. The plaintiff
testified about his experiences and his income and the bond in
respect of the property which has to be serviced. He presently holds
the shares in Deltrosize and Onicaset. All the other entities are
either dormant or deregistered.
38.
In
order to determine whether a partnership came into existence between
the parties during August 1995, either expressly or tacitly,
the main
question is whether the defendant had proven on the balance of
probabilities that there existed an
animus
contrahendi
to form such a
partnership. It is undisputed that the parties never expressly
decided to enter into a partnership agreement. The
conduct of the
parties consequently has to be assessed in order to decide whether
such an agreement had come into existence. I
shall now briefly refer
to what I regard to be the salient features of the evidence in that
regard.
39.
It
was submitted on behalf of the plaintiff that a number of incidents
which occurred are so totally irreconcilable with the notion
of a
partnership between the parties that this court could not find that
such had existed between them. I shall briefly refer to
these factors
chronologically for it is especially in their chronological sequence
that the inferences to be drawn become clear.
40.
Having
regard to the defendant's evidence that the partnership with the
plaintiff was established during August 1995, the first
event
thereafter that was referred to, is the establishment of Arks during
September 1995. As mentioned, the defendant was made
the sole
shareholder and had total control over the business and accounts of
this company. The plaintiff had none. These facts
are not compatible
with the suggestion that the parties have, only a month earlier,
formed a universal partnership in respect of
the very business that
Arks was going to conduct.
41.
The
second event took place in December 1995 when Arks purchased
Wonderboom Kwekery. Again, if it was the intention that this business
would have belonged
to
both
parties, one would have expected it to have been purchased by both.
Yet, it was purchased by Arks of which the defendant was
the sole
shareholder.
42.
The
third event relates to the purchase of the flat in Pretoria early in
1996, by
Arks.
Again,
this action is incompatible with the notion that the parties had been
in a partnership and would have shared equally in income
generated.
43.
The
fourth event relates to the purchase of 50% of the shares in Quelland
Estate from the plaintiff's brother during December 1996.
It would be
recalled that by this time the plaintiff owned the other 50% of the
shares. If the parties had been in a partnership
one would have
expected this to be the perfect opportunity to register the shares of
plaintiff's brother In the name of the defendant
so that they would
each have 50% of the shares. Yet, this was not done and the plaintiff
purchased the shares. The defendant was
in fact a signatory of this
contract as a witness.
44.
In
what was obviously an effort to show her interest in the shares and
to support her evidence that they were in a partnership,
the
defendant testified that the funding
for
the aforesaid purchase was done by
Arks and Wonderboom Kwekery, which belonged to her. However, it
turned out that this was not
the case and that it was the plaintiff
who personally paid the purchase price many years later from an
inheritance from his father.
45.
The
fifth event was the conclusion by the parties of the antenuptial
contract during January 1997. This occurred approximately one
and a
half years after the alleged formation of the partnership between the
parties. The terms of this agreement is a total contradiction
of the
alleged partnership. The defendant said in evidence that the
plaintiff had agreed that the antenuptial contract would be
amended.
However, considering the surrounding circumstances and the evidence
as a whole, that version is so improbable that it
must be rejected.
On the other hand, the evidence of the plaintiff, especially
regarding the reasons why he found it important
to be married under
the aforesaid marital regime, is probable and there is no reason why
it should be rejected.
46.
The
sixth event relates to the formation of Global Plants CC during 1999.
Hundred percent of the shareholding of this close corporation
was
registered in the name of the plaintiff and not 50% in his name and
50% in the name of the defendant as one would have expected
if the
parties had been in a partnership. The reason offered by the
defendant why she did not get a 50% membership did not convince
and
neither did her subsequent actions, or rather lack thereof, at the
time and subsequent thereto.
47.
The
seventh event relates to the divorce action instituted by the
defendant during 2002 and which was not proceeded with. At no
stage
during that process was there any suggestion from the part of the
defendant that she and the plaintiff had been in a partnership
as
presently alleged by her. The defendant testified that the notion of
a partnership was for the first time mentioned by her present
attorney during the present proceedings.
48.
The
eighth event relates to the formation of Deltrosize during 2011.
Again, 100% of the shareholding was registered in the name
of the
plaintiff and none in the name of the defendant. According to the
plaintiff the defendant also had nothing to do with this
company.
49.
The
aforesaid events were crucial events in the working career of the
plaintiff. Consequently, if the parties had in any way been
in
agreement that they would conduct a business in the plants and
related industry in a partnership, the outcome of the aforesaid
events would have been vastly different. The conduct of the parties
is not unequivocally consistent with consensus on the issue
of the
alleged partnership agreement, but is in fact consistent with a
specific intention not to be in such a contractual relationship.
50.
The
fact that the parties did not conduct their businesses in a
partnership is confirmed by the fact that on my consideration of
all
the evidence the assistance of the defendant and her contributions
were not shown on a balance of probabilities to have been
more than
one would have expected from a spouse in similar circumstances. For
most of their time together the parties resided on
a farm with the
plaintiff having to travel a lot. Under those circumstances it is
understandable that the defendant would have
given instructions to
employees and would generally concern herself with the property
itself and assist the plaintiff when necessary.
51.
Furthermore,
the businesses of the plaintiff were clearly not carried on for the
joint benefit of both parties. Neither the defendant
nor the company,
Arks,
received
payments from the plaintiff's businesses and neither did the
plaintiff or his businesses, receive any payments from the
defendant
or
Arks.
Obviously
the defendant benefited from the operations of the plaintiff's
businesses but this occurred consequent upon the plaintiff
deriving
an income from his businesses with which he took care of his family,
which included the defendant. Money was paid by the
plaintiff to the
defendant as and when it was required for the household or for her
personally. Such payments were never regarded
by any of the parties
as remuneration to the defendant as a partner of the plaintiff or as
an "equal sharing• in any
income that had been generated.
Only the plaintiff had signing powers on the business accounts and
there was no sharing of powers
or income. The defendant in fact
testified that the plaintiff was in control of the finances of the
other entities and that she
was only ln control of the finances of
Arks when it was still in business.
52.
I
have considered all the evidence of the defendant and the aspects on
which she relied for inferring the existence of a partnership.
In may
view those aspects in no way disturbs the overwhelming inference that
there was no partnership of any sort between the parties.
From the
conduct of the parties it cannot be inferred that a partnership had
come into existence between them. The conduct of the
parties
contradicted any intention to form a partnership of any sort and in
fact serves to prove a contrary intention. Every opportunity
that
arose over the years to provide the defendant with shares In any
business, was refused by the plaintiff. This confirms the
plaintiffs
evidence that he had no intention to enter into any kind of
partnership with the defendant and precludes any inference
to that
effect
53.
I
shall now turn to the issue of maintenance for the defendant. Section
7(2) of the Divorce Act, Act 70 of 1979, provides that the
court
granting a decree of divorce may make a maintenance order in favour
of one of the spouses after considering a number of factors
mentioned
in the section. The purpose of the court's enquiry is to determine
what award would be just considering the circumstances
of both
parties. On behalf of both parties both counsel referred me to a
number of decisions and extensively debated the principles
discussed
therein. It is not necessary to repeat them in this judgement.
54.
At
the time of the trial the defendant was 45 years of age and the
plaintiff 64 years. The parties separated after approximately
16
years of marriage. At present she earns only a little income from her
own means and is largely dependent on maintenance paid
to her by the
plaintiff. The defendant testified that she is currently involved in
a number of smaller projects but that she Is
not able to generate a
sufficient income from them. She stated that she can still work and
is interested In continuing a business
in the plant industry. It is
her wish to obtain a small piece of land from where she can conduct a
nursery business. I am satisfied
from her evidence that the defendant
is indeed able to earn a proper income albeit not necessarily in the
formal sector. For that
reason it is necessary to consider awarding a
lump sum to the defendant to enable her to establish such a business.
This was indeed
acceptable to the defendant. Furthermore, and to
enable her to overcome the initial period, rehabilitative maintenance
should be
considered for a period of time. The defendant also
accepted rehabilitative maintenance for a period of 18 months.
55.
The
only real question, and the one argued on behalf of the parties, was
what this amount should be and what the amount of monthly
maintenance
should be. In the heads of argument submitted on her behalf the
defendant submitted an amount of R2 400 000,00. During
argument
before this court it was, however, submitted that it appears that the
plaintiff can raise the amount of R1 500 000,00
and that it would not
be unfair for the court to award such an amount as rehabilitative
maintenance to the defendant. In regard
to her expenses the defendant
had two separate lists before the court which differed extensively
and were outdated. She submitted
that her expenses were in the region
of R 20 000, 00 per month. It was submitted on her behalf that an
amount between R17 000,00
and R21 000,00 should be awarded to her as
monthly maintenance.
56.
On
21 October 2014 the plaintiff made an offer with prejudice to the
defendant in order to settle the action. The relevant provisions
of
this offer was that he offered to pay maintenance to the defendant in
the amount of R15 000, 00 per month for a period of nine
months as
well as her medical expenses. Furthermore that the plaintiff would
immediately make available to the defendant 50% of
the stock on the
farm. On the defendant's own version at the time, the value of the
stock was approximately R3 million. Furthermore
the plaintiff offered
to make available to the defendant a property of no less than R1
million within nine months in the same area
where the defendant was
staying. This property would be obtained and registered in a trust
paid for by the plaintiff. This property
would also have a
residential house which could house the defendant and the children.
The defendant would be an income beneficiary
of the trust and would
have the right to live on the property for the rest of her life and
to conduct business from the property
and derive all the proceeds
generated on the property for her own account. Other offers were also
made including a contribution
to the defendant's costs of suit.
57.
A
similar offer was made on 11 February 2015 except that the value of
the property was increased to R 1,2 million. These offers
were
declined by the defendant. During the trial the plaintiff made
another offer to the defendant which was not accepted. In terms
of
that tender the plaintiff would, inter alia, pay a lump sum to the
defendant of R1 million.
58.
The
plaintiff gave evidence as to why the amount of R1 million was the
maximum amount which he could afford to pay as a lump sum
to the
defendant. In brief the plaintiffs evidence was that the only money
which he would be able to raise was by applying for
a loan in the
name of Unicasat. The maximum loan that this company could obtain
according to a valuation made by ABSA Bank of the
farm Wolwengat in
the Western Cape owned by Unicasat, is the amount of R1 500 000,00.
The farm Wolwengat is the farm that was purchased
with money from the
sale of the farm Frischgewaad in Tzaneen which Quelland Estates
owned.
59.
The
plaintiff testified that he would not be able to pay more than R1
million of this amount to the defendant. He testified that
during
August 2019 an extreme cold front hit the area and Wolvengat
experienced Black Frost. This caused him to lose 85% of the
plants
ready for export. The time for performing in terms of the existing
contract expired and this left the plaintiff with no
income but still
having to pay expenses such as salaries, maintenance and the cost of
depots for the storage of the plants.
60.
The
plaintiff testified in detail what the export of big trees and plants
entailed. From the sourcing of contracts abroad a year
before
delivery, to the sourcing of the plants, preparation, treatment,
packaging, transport and the obtaining of official local
inspection
certificates as well as those abroad, to the loading of containers
and shipping thereof to its overseas destination.
From the start of
the process to the point of export 23 phases have to be gone through
and all this have to be funded by the plaintiff
prior to receiving
any payment. The input costs lost in respect of his previous contract
as a result of Black Frost was R3,6 million
which he had funded plus
the costs of the plant material. In order to fund his operations for
purposes of the next contract and
as he had lost the income from the
previous contract, the plaintiff required the loan from the bank
referred to above. For that
purpose, and to service the loan and
cover his other expenses, the plaintiff testified that he could not
afford to pay more than
R1 million from the R1,5 million of the
proposed loan to the defendant. The plaintiff was thoroughly
cross-examined on his evidence
and particularly on the need to retain
at least R500 000,00 of the proposed loan. I am satisfied that on the
probabilities the
plaintiff would require at least that amount and
that he has made a full disclosure of his financial affairs.
61.
As
far as his personal income is concerned the plaintiff testified that
at a maximum he can allocate 5% to 6% to himself from the
earnings of
the business. That translates into approximately R50 000,00 to R60
000,00 per month. The plaintiff does earn additional
amounts such as
the lease of Fynbos on the farm but these amounts are negligible at
this time. The plaintiff also gave full particulars
of his expenses.
That evidence was not really in issue and it is not necessary to
refer to the detail thereof.
62.
Regarding
assets it is clear that most of the assets belong to Deltrasize and
is used in the business. In his personal capacity
the plaintiff owns
a boat, a Bakkie to pull the boat, a four wheel motorcycle and a few
trailers. The plaintiff also owns valuable
fishing tackle. According
to the plaintiff he has all his life been seriously involved in
fishing as his sole hobby. It was submitted
on behalf of the
defendant that the plaintiff could liquidate these assets in order to
pay the defendant a bigger amount.
63.
On
the evidence before this court I'm satisfied that it has been shown
that with an amount of R1 million the defendant would be
able to set
herself up in an income generating business. The defendant failed to
submit any evidence that a higher amount would
be required. Having
regard to all the evidence I am also of the view that it would not be
fair to expect of the plaintiff to pay
a larger amount to the
defendant.
64.
Regarding
the amount of monthly payments I am of the view that it would be fair
and just to order the plaintiff to pay the amount
of R15 000,00 to
the defendant until the end of the period of 18 months after the
amount of R1 million had been paid to her.
65.
I
am aware of the fact that the award I propose to make is less than
what had been offered to the defendant approximately five years
ago
and which she had rejected. However, since that time the plaintiffs
circumstances have changed and I am compelled to consider
the facts
and circumstances as they exist at present.
66.
It
was submitted on behalf of the plaintiff that if the defendant failed
to convince the court to award larger amounts than those
offered in
settlement, the defendant should bear the costs resulting from her
refusal. I agree with the submission that the plaintiff's
offers in
the past had been reasonable and that the defendant only has herself
to blame for not accepting those offers. For approximately
five years
the plaintiff had paid the defendant a monthly amount of R27 000,00
and incurred the costs of the continuing proceedings.
These could all
have been avoided.
67.
It
is so that this court's award will be less than the offers made to
the defendant in the past. The plaintiff has made out a strong
case
why that fact should be reflected in an order for costs. However, I
have to consider each and every fact and circumstance
and in that
sense consider the events and changing circumstances in respect of
the parties over many years and also during the
course of the
litigation. Costs, in a matter like the present, cannot be decided by
having a rigid approach. Having said that,
I also considered the
final award made by me. Having regard to, inter alia, all the
aforesaid, I am of the view that it would be
fair and just to make an
order that each party pays his or her own costs of the action.
68.
In
the result, the following order is made:
1.
The marriage between the plaintiff and
defendant is dissolved.
2.
The plaintiff shall pay to the defendant
the amount of R 1 000 000,00 within 90 days from date of this order.
3.
The plaintiff shall from date of this
order until the end of the period of 18 months from date of payment
of the aforesaid amount
of R 1 000 000,00, pay to the defendant the
amount of R 15 000,00 per month, which payment is not susceptible to
variation in terms
of the Maintenance Act.
4.
The plaintiff shall be responsible for
the reasonable medical expenses of the defendant from date of this
order until the end of
the period of 18 months from date of payment
of the aforesaid amount of R 1 000 000,00.
5.
After the expiry of the aforesaid period
of 18 months, the defendant shall have no further claims against the
plaintiff.
6.
Each party shall pay his/her own costs
of the action.
C.P.
RABIE
JUDGE
OF THE HIGH COURT