About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 117
|
|
C.M.K v M.W.K (52400/2017) [2019] ZAGPPHC 117 (18 April 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
Case
number: 52400/2017
18/4/2019
In
the matter between:
C[….]
M[….] K[….]
Plaintiff
and
M[….]
W[….] K[….]
Defendant
JUDGMENT
AWAKOUMIDES,
AJ
1.
This
is an exception brought by the Defendant against the Plaintiffs
amended particulars of claim wherein the Plaintiff alleges
that a
universal partnership came into existence between the Plaintiff and
the Defendant in respect of the property which formed
the former
matrimonial home of the parties.
2.
The
parties were married to each other by antenuptial contract on 25
April 2002 at Pretoria and the accrual system referred to in
Chapter
1 of the
Matrimonial Property Act, 88 of 1984
would not apply to the
marriage between the parties.
3.
In the amended particulars of
claim, at paragraphs 8 and 9 thereof the Plaintiff alleges that a
partnership came into effect and
exists between the parties in
respect of the former matrimonial home which is currently registered
in the name of the Defendant.
The Plaintiff alleges that all the
income derived from her employment was deposited into the Defendant's
banking account for purposes
of paying the mortgage bond over the
property, the maintenance and improvements to the property and to pay
the recurring monthly
expenses. In addition thereto the Plaintiff
invested the sum of R200 000.00 into the property which money she had
received as a
gift from her father who also provided time, skill and
effort for the building of cottages adjacent to the property and
general
improvements thereto. In doing so the Plaintiff submitted
that the parties tacitly entered into a universal partnership in
equal
shares as regards the immovable property.
6.
In
Butters
the
parties lived together as husband and wife for nearly 20 years. The
court found that a universal partnership came into existence
between
the parties in that Ms Nncora shared in the benefits of Mr Butters'
financial contribution (income of the business conducted
by him) and
he shared the benefits of her contribution to the maintenance of
their common home and the raising of the children.
7.
In
my view the Butters case appears to be applicable to the case before
me. The Defendant's counsel submitted that the prayer contained
in
the amended particulars of claim for an order dissolving the
partnership is not competent
vis-a
vis
the dissolution of the
partnership asset but may be limited only to the profit that is made
on the partnership (if this is found
to be an asset). In my view this
is not an issue that I have to decide on at this stage of the
proceedings. Having considered all
the submissions made and the
amended particulars of claim I do not believe that the exception
holds any merit.
8.
In the premises I make the
following order:
(a)
The exception is dismissed with
costs.
G.T.
AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
Representation
for Plaintiff:
Counsel:
Adv. M Perreira
Instructed
by:
Andrea Rae Attorneys
Representation
for Defendant:
Counsel:
Adv. JR Minnaar
Instructed
by:
Riaan Bosch Attorneys