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
>>
2018
>>
[2018] ZAGPPHC 185
|
|
Timmer v Zwarts (61397/2015) [2018] ZAGPPHC 185 (9 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
Case
No. 61397/2015
In
the matter between:
ELIZABETH
CORNELIA
TIMMER
PLAINTIFF
and
FLORIS
STEPHANUS
ZWARTS
DEFENDANT
JUDGMENT
MILLARA
J
1.
This
is an action brought by the plaintiff against the defendant.
The plaintiff claims:
1.1
the dissolution and liquidation of an
alleged partnership between them; and
1.2
for the repayment of certain money which
it is alleged the defendant was supposed to invest on behalf of the
plaintiff but which
he did not.
2.
It is common cause between the parties
that during October 2007 they entered into an oral agreement in terms
whereof the plaintiff
would contribute to the building of a
flat on the property of the defendant and that pursuant to that
contribution, they
would both derive a benefit from the income of
letting out that flat.
3.
The parties disagree on the amounts
contributed by the plaintiff and the defendant respectively and the
manner in which the income
from the flat was to be dealt with.
4.
Only two witnesses were called to
testify. The plaintiff and defendant.
5.
The plaintiff testified that during 2006
she had entered into a relationship with the defendant. They had
become engaged and decided
to live together in the plaintiffs
home in Danville.
6.
The home in Danville was modest and
during 2007, they had decided that the plaintiff would sell her home
and that they would move
to live at the defendant's house in Pretoria
North. The reason for the move was that his property was of a higher
value and was
much bigger. It was decided that a flat would
be built on that property and that it would be let out.
7.
The plaintiff testified that she had
contributed R130 000,00 in cash and had contributed a further sum by
way of purchases at Builders
Warehouse towards the cost of
building the flat. The plaintiff produced in evidence her bank
statements which
demonstrated these payments. This was paid mainly
from the proceeds of the sale of her house which had been sold for
R380 000,00
on 8 October 2007. This was the last time the plaintiff
owned any immovable property. For his part, the defendant had written
the
plaintiff into his will as a beneficiary, one dated 19 April 2007
and another on 10 September 2007. In both she would inherit the
Pretoria North property. The plaintiff testified that this was done
by the defendant to ensure she was protected if something happened
to him.
8.
The flat was built and subsequently let
for R2 500,00 per month. The plaintiff testified that the defendant
had collected the rent
but had never given any of it to her or
accounted for it. While they had lived together, and she
was employed,
she had paid all her own expenses and had in
addition bought the food for the home and paid the home helper. The
Defendant had
paid all the other expenses.
9.
Some years later the defendant's father
had passed away and had left him a house and investments. The
plaintiff and defendant
had gone to live in the late fathers' house
and had left her daughter in the Pretoria North house. The reason for
this had been
that there was insufficient space to take all their
furniture to the new house.
10.
During April 2014, the defendant had
suggested to the plaintiff that she resign from her
employment. She had done so
and had cashed in her pension. She had
received R376 000,00 which she had used to pay some debts and make
some purchases. The defendant
had offered to invest R150 000,00 of
the pension money with his investments, the reason advanced
being that the higher
the amount invested the better the
interest rate for them both.
11.
After the payment of the R150 000,00 to
the defendant, the plaintiff was totally dependent on the defendant.
The plaintiff then
asked for some proof of her investment and
an indication of what it was earning.
The defendant
told her to "believe in him" and that
everything would be fine. He never produced any documents. The
plaintiff persisted
until May 2015 and eventually moved out, going
back to the Pretoria North house where her daughter stayed. They left
that property
two months later after having made other arrangements.
The plaintiff testified that she had seen a lawyer in June 2015.
12.
The defendant testified that he and the
plaintiff had met during 2005. He had subsequently lived with her at
her home in Danville
before the property had been sold. The plaintiff
had paid for all the expenses there and he had only paid for the
water and lights
and occasionally contributed to the cost of food. He
had not paid any rent. He said that the decision to sell the house
had been
hers and that his only role had been to see that she was not
cheated. He agreed that they had decided to live together at his
Pretoria
North home and that they would build a flat there to rent
out.
13.
He confirmed that the plaintiff had paid
the sums of R50 000,00 and R80 000,00 respectively to him and that
she had also purchased
goods for the building of the flat from
Builders Warehouse. From the R50 000,00 he had purchased bricks and
cement for the construction
of the flat and had paid a bricklayer but
besides this he had done all the work himself save when the
plaintiffs sons had assisted.
His evidence was that only R5 000,00
was spent towards the flat and that the remainder was towards the
"standard of living
they enjoyed". He disputed the amounts
spent at. Builders Warehouse were spent for the flat stating that the
plaintiff may
have bought flowers and flower pots.
14.
He initially disputed that there had
been any agreement between them stating
"we
never agreed anything, I gave something, and she gave something,
there was no partnership or agreement, it was just the
relationship"
during his examination in chief, but
during cross examination conceded
"she
was working at Builders Warehouse when the flat was built. She paid
for the groceries
-
she
never paid the bond or the water and lights, she paid for all that
stuff,
that was the agreement.
She also paid for the housemaid. The agreement was that she pay all
that stuff."
(my
underlining).
15.
The rental received from the flat was R1
500,00 per month and when it was received was paid towards the water
and electricity for
both the main house and the flat. The defendant
testified that he had included the plaintiff as a beneficiary
in his will,
to initially inherit the immovable property subject to
conditions, in a will dated 4 May 2007 and thereafter to inherit
without
conditions in a subsequent will dated 10 September 2007. He
explained this by saying that it was because they were together. The
defendant's evidence was that he had not encouraged the plaintiff to
resign from her employment and played no role in her decision
to
cash in her pension. He did not know how much she had received
and denied that he had ever offered to add her funds to
his own for
investment purposes to increase the interest earned.
16.
His
evidence was that the plaintiff had given each of her children R5
000,00 and had bought various items and
had
then said
"I want to
give you something"
whereupon
she had deposited R150 000,00 into his bank account. He regarded this
as a gift. He denied that the plaintiff had ever
asked him about the
income for the flat or for information relating to the investment.
17.
It was put to him that his failure to
provide this information had led to the termination of the
relationship, but he denied
this and said that his refusal to
sign a joint will with the plaintiff had been the real reason
she had terminated the relationship.
18.
The
defendant testified that notwithstanding the reference to
the plaintiff in the two wills before the court
as
"verloofde"
or fiance, they had never in fact
been engaged. He had gone on the instructions of the plaintiff to
purchase a ring
for her. He was adamant that they were
not engaged but could not explain the reference in his will.
19.
The plaintiff gave her evidence in a
clear and forthright manner. Much of her evidence was unchallenged.
The defendant was, on the
other hand not a particularly impressive
witness. Although he had been in court when the plaintiff testified,
he was unable to
explain why the plaintiff had been unchallenged on a
number of material aspects, not least of which that she had indeed
paid R130
000,00 to him. It had been put to the plaintiff that she
had only given the defendant R5 000,00 towards the cost
of
bricks for the flat, but this had been disputed and the plaintiff
had tendered her bank statements to corroborate her evidence.
The
defendant gave a different version in evidence and stated that the
cost of the bricks had been part of the first R50 000,00
paid to him.
He said of the balance, that this had been used to maintain a
lifestyle and said the same of the R80 000,00. He did
not explain why
these payments had been made to him given the terms of
the agreement testified to by him.
20.
The
evidence given by the parties is mutually destructive.
In these circumstances, the test to be applied is that
set out
in by Eksteen JP in
National
Employers' General v Jagers,
[1]
as follows:
'It
seems to me, with respect, that in any civil
case,
as
in
any criminal case, the onus can ordinarily only be
discharged by adducing credible evidence to support the
case of the
party on whom the onus rests. In
a
civil case the onus is obviously not
as
heavy
as it is in
a
criminal case, but
nevertheless where the onus rests on the
plaintiff as in the
present case, and
where there are two mutually destructive stories,
he can only
succeed if he satisfied the Court
on
a
preponderance
of probabilities that his version is true and accurate and therefore
acceptable, and that the other version advanced
by the defendant
is therefore false or mistaken and falls to be rejected. In
deciding whether that evidence
is true or not the
Court will weigh up and test the plaintiff's allegations against the
general probabilities. The estimate of
the credibility of
a
witness will therefore be
inextricably bound up with
a
consideration of the probabilities of
the case and, if the balance of probabilities favours the
plaintiff, then the Court
will accept his version as being probably
true. If however the probabilities are evenly
balanced in the sense
that they do not favour the plaintiff's case
any more than they do the defendant's, the plaintiff can only succeed
if the Court
nevertheless believes him and is satisfied that his
evidence is true and that the defendant's version is false.'
21.
In regard to Claim 1, relating to the
partnership and flat, the probabilities do not favour the version of
the defendant. The plaintiff
had no reason, given the living expenses
that she and the defendant each paid by agreement, to advance
anything more than
the R5 000,00 contended by the defendant toward
the cost of the flat. On the probabilities the plaintiff advanced the
R130
000,00 so as to secure an income for herself.
The defendant, for his part benefitted by an improvement in the value
of his property and utilized the income from the flat to
pay what was his agreed expense.
22.
The version of the plaintiff is to be
preferred over that of the defendant which is rejected as being so
improbable as to be untrue.
23.
.
The
evidence of the parties establishes that the agreement
entered into by them in respect of the flat was a
partnership
societas
universorum quae ex quaestu veniunt.
This
type of partnership "is
referred
to
a/so
as a
partnership
of general profits, or of all profits
[2]
, or merely
as
a
general
partnership. This kind of partnership comprises all that the
partners may acquire during its continuance from
every kind of
commercial activity. Partners are considered to enter into this kind
of partnership when they declare that they contract
with
a
view
to creating
a
partnership
without any further explanation, or that they contract
a
partnership
of all profits which they may make from
all sources. Unlike the
partnership of all
present and future property (societas omnium bonorum), it is confined
to profits alone.
[3]
"
24.
The
terms of this type of partnership may be entered into expressly or
tacitly
[4]
.
While
the plaintiff asserts that there was an express agreement to enter
into the partnership and the defendant disputes this, I
find that on
the evidence of the conduct of the parties that at the very least, by
their conduct, a tacit agreement of partnership
to realize the
profits from the flat came into existence between them.
25.
The
plaintiff sought in her particulars of claim,
inter
alia
an
order that a liquidator be appointed to liquidate the partnership
assets. I am of the view that this is impractical given that
the
partnership at no stage extended to include the immovable property of
the plaintiff on which the flat was constructed. The
flat has acceded
to the property and a liquidator would not be able to realize its
value without dealing with the whole of the
property. It is common
cause that the partnership has no creditors and furthermore the
defendant has testified that there are no
records available to
account for the income from the flat. The appointment of a liquidator
would in the circumstances serve no
purpose.
[5]
The plaintiff derived no benefit from her contribution to the
partnership and it is for this reason that I intend to order that
the
defendant repay to the plaintiff her contribution to the
partnership.
[6]
26.
In regard to claim 2, the probabilities
similarly favour the version of the plaintiff.
The
assertion by the defendant that the plaintiff, who was now unemployed
and dependent on him, simply paid the last of her pension
proceeds in
the sum of R150 000,00 as a gift or donation is improbable. The
plaintiff and defendant were not married, and
on the version of the
defendant not even engaged. The reason given by the plaintiff for
leaving the defendant and ending the
relationship is
cogent and would certainly have on the probabilities given her
cause for doing so. The
evidence of the defendant that
the plaintiff left him because he would not sign a joint will is so
improbable that it can be rejected
. The plaintiff was by all
accounts totally dependent on the defendant at the time she left and
the sole beneficiary in his will,
his late father who was the
beneficiary to certain of his movables having predeceased him. The
reason proffered by him is contrived
and is so improbable as to
be untrue.
27.
I find that the plaintiff did indeed
give the R150 000,00 to the defendant to invest for her and
that he failed to do so.
28.
I was addressed by counsel on the scale
of costs. Having regard to the nature of the dispute and the relief
sought, I find that
the plaintiff was justified in instituting action
in this court and in the circumstances the costs will follow
the result.
29.
In the premises, I grant the following
order:
29.1
The partnership between the plaintiff
and the defendant relating to the flat located at 219 Burger Street,
Pretoria North is hereby
dissolved.
29.2
The defendant is ordered to pay to the
plaintiff in respect of claim 1, the sum of R130 000,00 (One hundred
and thirty thousand
Rand).
29.3
The defendant is ordered to pay to the
plaintiff, in respect of claim 2, the sum of R150 000,00 (One hundred
and fifty thousand
Rand).
29.4
The defendant is ordered to pay interest
on the amounts referred to in paragraphs 29.2 and 29.3 above at the
legal rate a
tempore mora
from
7 August 2015 to date of payment, both days inclusive.
29.5
The defendant is to pay the plaintiffs
costs of suit which costs are to include the trial costs
for 7 and 8 February
2018, on the High Court scale as
between party and party.
A
MILLAR
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON: 7 & 8 FEBRUARY 2018
JUDGMENT
DELIVERED ON: 9 FEBRUARY 2018
COUNSEL
FOR THE APPLICANT:
ADV J VILJOEN
INSTRUCTED
BY: DP DU PLESSIS INC.
COUNSEL
FOR THE RESPONDENT: ADV F BIRKHOLZ
INSTRUCTED
BY: GIDEON VAN DEN BERG INC
[1]
National
Employers' General Insurance v Jagers
1984
(4) SA 437
(E) at 4400. See also
Stellenbosch
Farmers' Winery Group Ltd v Martell et cie
2003
(1) SA 1
(SCA) para 5 and
Dreyer
v AXZS Industries (Pty) Ltd
2006
(5) SA 548
(SCA) at 558E-G.
[2]
Sometimes referred to as a leonine partnership.
[3]
Perspectives on The Law of Partnership in South Africa,
JJ Henning, Juta, 2014 at pages 86-87
[4]
Ibid and
Paixao
and Another v Road Accident Fund
2012
(6) SA 377
(SCA) at 383 D-E where the court stated•
An
agreement may be made expressly or tacitly. An express agreement may
be made orally or in writing.
A
tacit
agreement is inferred from the surrounding circumstances and conduct
of the parties".
[5]
See in regard to the granting of alternative
relief to that expressly claimed
National
Stadium South Africa (Pfy) Ltd and Others v
Firstrand Bank Ltd
2011
(2) SA 157
(SCA) it was held that:-"
The
court below justified its approach on the ground that in joining the
managers in the proceedings and supporting them the City
became
a
co-wrongdoer
and had to be restrained. This, however, does not dispense with the
required prayer for relief against the City.
The court also relied
on the prayer for alternative relief. It erred because this
superfluous prayer does not entitle a court
to grant relief that is
inconsistent with the factual statements and the terms of the
express claim...'
[6]
The defendant benefitted to the extent of the improvement of his
immovable property and in respect of the unaccounted-for income
over
a period of some eight years.