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[2018] ZAGPPHC 476
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Z.B.K v S.M.S (24545/2015) [2018] ZAGPPHC 476 (23 March 2018)
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Certain
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO: 24545/2015
23/3/2018
In
the matter between:
Z
B
K
Applicant
And
S
M
S
Respondent
JUDGMENT
WEINER, J
:
[1]
The applicant sought an order declaring
that a universal partnership existed between the applicant and the
respondent in which the
parties held equal shares. She further sought
the dissolution of the partnership and the appointment of one Mohamed
Seedat as receiver
and liquidator of the partnership estate to
inter
alia
collect the assets, pay
liabilities and distribute the residue of the joint estate in equal
shares.
BACKGROUND
[2]
The applicant alleged that she and the
respondent lived together in a relationship
"likened
to that of husband and wife"
from
1984 until 2009. She alleges further that the respondent bought her
many rings as an indication of his commitment and that,
in their
community, they were treated as a married couple. She sets out the
duties that she performed,
inter
alia,
in regard to their domestic
life.
[3]
The applicant contends that during the
early 1990s she persuaded the respondent to start a business known as
Lumen Electrical and
that they both contributed to the business in
various ways.
[4]
Accordingly she alleges that she
contributed directly and indirectly to the maintenance an-d increase
of the estate of the respondent
and that the respondent's business
became very successful due,
inter
alia,
to her contribution.
[5]
The applicant states that the respondent
left the common home during 2009 and thereafter attempted to have her
evicted from the
common home. He then attempted to transfer the
property into the name of his wife, Mrs F G and the relationship
terminated in 2009.
[6]
Applicant states that, as she and the
respondent pooled their assets, income and labour, for their joint
benefit, they expressly,
alternatively
tacitly,
alternatively
by implication entered into a
universal partnership in equal shares. They accumulated a joint
estate including a property which
was registered in the name of the
respondent and which was the common home for her and the respondent.
She accordingly claims that
she has a case for the declaration of a
universal partnership, the dissolution thereof and after the receiver
has performed his
duties, a pay out to her of 50% of the residue of
the estate.
[7]
The respondent stated firstly that this
application should not have been brought by way of motion in that
disputes of fact were
obviously anticipated.
[8]
The respondent raised the question of
prescription in his answering affidavit. However, the parties did not
deal specifically with
this point in their heads of argument and
further heads of argument were requested from the parties which were
filed in accordance
with my direction.
PRESCRIPTION
[9]
It is common cause that the relationship between the parties
(whatever it may have
been) terminated in 2009. The applicant has
made no attempts since 2009 to obtain any relief in regard to the
partnership which
she claims.
[10]
The respondent contends that the applicant claims a monetary amount
in that she prays that a
liquidator be appointed and that the
determined value be paid to the applicant.
[11]
It is common cause that the application was issued on the 1
st
April 2016.
[12]
Section 10(1) read with section 11(d) of the Prescription Act
[1]
(the Act) provides as follows:
"10(1) Subject to the
provisions of this Chapter and Chapter IV,
a
debt shall be extinguished by
prescription after the lapse of the period which in terms of the
relevant law applies in respect of
the prescription of such debt."
"11. The periods of
prescription of debt shall be the following:
‘…
(d)
Save where an act of Parliament provides otherwise, three years in
respect of any
other debt."'
[13]
Section 12 of the Act provides that:
"(1) subject to
the provisions of subsections (2) and (3) prescription shall commence
to run as soon as the debt
is due;
(2) …
(3)
a debt shall not be deemed to be due
until the creditor has knowledge of the identity of the debtor and of
the facts from which
the debt arises: Provided that a creditor shall
be deemed to have such knowledge if he could have acquired it by
exercising reasonable
care."
[14]
The rationale behind the principle of
extinctive prescription was dealt with by the Supreme Court of Appeal
(SCA) in the matter
of
KLD
Residential
CC
v
Empire Earth Investment 17 (Pty) Ltd
[2]
where the following was stated:
"[13] One of the principal
reasons for extinctive prescription
is
to provide
certainty to
a
debtor
-
after
a
period of time
when the creditor has been inert, the debtor should have certainty as
to whether or not
a
debt
is
still owed. The
three-year period over which prescription runs
is
regarded
as
being enough time
for the creditor to enforce the obligation, and conversely, if it is
not enforced within that time, the debtor
may be certain that the
obligation
has
ended. The debtor
is
protected
save where the reasons for the principles underlying prescription
fall away and the protection of
a
creditor
is
justified.
[14]
This is clearly explained
in Murray
&
Roberts
Construction (Cape) (Pty) Ltd v Upington Municipality 1994(1)SA 571
(A) at 578 F-H where Grosskopf AJA said:
'Although many philosophical
explanations have been suggested for the principles of extinctive
prescription
...
its main
practical purpose is to promote certainty in the ordinary affairs of
people. Where
a
creditor lays
claim to
a
debt
which has been due for
a
long period,
doubts may exist as to whether
a
valid debt ever
arose, or if it did, whether it has been discharged.
.
. .
The alleged
debtor may have come to assume that no claim would be made, witnesses
may have died, memories would have faded, documents
or receipts may
have been lost, etc.
These sources of uncertainty
are reduced by imposing
a
time limit on the
existence of
a
debt, and the
relevant time limits reflect, to some extent, the degree of
uncertainty to which a particular type of debt is ordinarily
subject
(s 11 of the Act).'
[15]
The justifications for
extinctive prescription are also to be found in Road Accident Fund v
Mdeyide
[20107ZACC 18;
2011 (2) SA 26
(CC) and Myathaza v Johannesburg Metropolitan Bus Services (SOC)
Limited t/a Metrobus
&
others
[2016]
ZACC
49
paras 28 to 30. In Mdeyide, Van der
Westhuizen J said (para 8):
'This Court has repeatedly
emphasized the vital role time limits plays in bringing certainty and
stability to social and legal affairs
and maintaining the quality of
adjudication. Without prescription periods, legal disputes would have
the potential to be drawn
out for indefinite periods of time bringing
about prolonged uncertainty to the parties to the dispute. The
quality of adjudication
by courts is likely to suffer as time passes,
because evidence may have become lost, witnesses may no longer be
able to testify,
or their recollection of events may have faded. The
quality of adjudication is central to the rule of law.' have become
lost, witnesses
may no longer be able to testify, or their
recollection of events may have faded. The quality of adjudication is
central to the
rule of law."
[15]
Although the term “
debt”
is not defined in the Act, it has
been held that it refers to anything that is owed or due such as
money, goods or services that
a debtor is under an obligation to pay
or render to a creditor. See CGU Insurance Limited v Rumdel
Construction (Pty) Limited.
[3]
[16]
In
Desai
NO v Desai and Others
[4]
the SCA held that the word “
debt”
is assigned and wide and general
meaning which includes an obligation to do something or refrain from
doing something. The word
“
debt”
denotes whatever is due from any
obligation. See also
Electricity
Supply Commission v Stewarts
&
Lloyds of South Africa.
[5]
[17]
Respondent accordingly contends that, in
seeking an order to appoint a receiver and liquidator, and once he
has collected all assets
and discharged all liabilities, to pay the
parties their share, amounts to an obligation which is included in
the meaning of the
word "debt". Therefore, the applicant's
claim has become prescribed. The applicant however submits that her
claim is
based on a right subject to acquisitive prescription as
opposed to extinctive prescription. Her claim, it was contended, was
one
for ownership and is a real right subject to acquisitive
prescription and not a debt for the purposes of extinctive
prescription.
She claims, according to the submissions of her
counsel, a real right to the property that she and the respondent
accumulated over
the years, which claim is based on a real right as
co-owner with the respondent of partnership assets and therefore
extinctive
prescriptive cannot arise.
[18]
The applicant seeks to rely on cases
where a court must issue an order dissolving the partnership before a
claim arises. In
Mbalo v
Makhosonke
[6]
the parties lived together in a
relationship but did not marry. They bought a house together and
became co-owners of same. At para
[38] of the judgment the court
found that
"claims flowing from
a
partnership
are protected against the running of prescription until after
dissolution thereof'.
Applicant
accordingly contends that prescription can only arise after the
partnership estate is dissolved.
[19]
The
distinction between the present case and the cases relied upon by the
applicant are that, in all the authorities referred to
by the
applicant, the plaintiff was already a co-owner. In the present case,
the applicant seeks the declaration that a universal
partnership
exists. She does not have a real right but only a personal right
which is subject to the principles of prescription.
In Schrepfer v
Ponelat.
[7]
,
Moosa J held
that when the relationship came to an end, and the parties separated,
the universal partnership terminated when the
relationship ended.
This finding was not disturbed on appeal.
[8]
[20]
The facts in this case are in line with
those in the
Schrepfer
case.
This is in contrast to the case of
Salaman
v Salaman
[9]
where the parties who were married
in community of property had divorced. It was held that when the
joint estate was dissolved by
the court in 1997, the decree of
divorce which dissolved the parties' marriage did not dissolve
co-ownership over the property.
[21]
In
Cloete
v Maritz.
[10]
The
defendant argued that according to him, the relationship between the
parties was terminated on 22 March 2009, after which, there
was
barely any contract between them. The evidence indicated that until
June 2010, the plaintiff was still engaged in partnership
business,
even though the romantic relationship had ceased to exist, on the
Defendant's version on or during March 2009. It was
held that, the
universal partnership continued to exist at least until June 2010,
thus when her claim was made on 16 August 2012,
it had not
prescribed.
[22]
This is, in contract to the present
case, where it is common cause that the relationship (romantic or
otherwise) terminated in 2009.
[23]
In
Mbalo
v Makhosonke and Others
[11]
,
Cloete J had to deal with the issue
of prescription where the respondent
"relied
on the decision in Claassen v Quenstedt and Others 1199/2011 [2014]
ZAECPEHC 18 (25 March 2014). There the court held
that the actio
communi dividundo distinguishes between
a
claim for termination of co-ownership
flowing from
a
partnership
and one which does not; and that accordingly only claims flowing from
a
partnership
are protected against the running of prescription until after
dissolution thereof in terms of
s 13(d)
of the
Prescription Act 68 of
1969
. The respondent thus argues that any amounts expended by the
applicant on the property more than three years ago have prescribed
in terms of
s 11(d)
of that Act."
[12]
[24]
Cloete J held
[13]
"Having regard to the limitation
clause ins 36 of the Bill of Rights it would in my view amount to
unfair discrimination to
find that where parties are co-owners but
are not married to each other and do not have
a
partnership agreement, they do not
enjoy the same protection under
s 13.
It is not difficult to envisage
a
situation
where, as in Claassen, parties cohabit in
a
romantic relationship for years, and
only once that relationship ends do they give any consideration to
how their respective contributions
to their joint property should be
taken into account. If individuals in
a
partnership, whether it be universal
or
a
commercial
enterprise, and spouses are protected, so too should persons in far
more vulnerable situations such as the applicant".
He
thus disagreed with the finding in Claassen in relation to the
whether parties, not married, were protected.
[25]
The present case is distinguishable as
Cloete J was dealing with co ownership. As stated above, the
plaintiff is not a co-owner
of the property. There is presently no
partnership between the parties nor is there a co ownership
issue, which would affect
the running of prescription.
[26]
In my view the plaintiff's claim arose
when the relationship terminated, on the common cause facts, in 2009,
and the claim for the
declarator and payment has therefore
prescribed.
Accordingly,
the following order is made:
1.
The
application is dismissed.
2.
The
applicant is to pay the respondent's costs.
S
WEINER
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
COUNSEL
FOR APPLICANT MR
Z OMAR
APPLICANT'S
ATTORNEYS ZEHIR
OMAR ATTORNEYS
C/
O
FRIEDLAND HART SOLOMON
NICOLSON ATTORNEYS
COUNSEL
FOR RESPONDENT ADV
L VAN GASS
RESPONDENT'S
ATTORNEYS STOPFORTH
SWANEPOEL &
BREWIS ATTORNEYS
DATE
OF HEARING
8 FEBRUARY 2018
DATE
OF JUDGMENT
23 MARCH 2018
[1]
Act 68 of 1969
[2]
2017(6) 55
SCA
[3]
[2003] 2 All SA 597 (SCA).
[4]
[1995] ZASCA 113
;
1996 (1)
SA
141
(SCA) at 146/- 1 47A,
[5]
1981 (3)
SA
340
(A) at 344F-G.
[6]
Case Number 21021/13 Western Cape High Court
[7]
(17 318/2009)(2010] ZAWCHC 193 (26 August 2010)
[8]
2012 (1) SA 206 (SCA
[9]
Salaman v Salaman and Another (9058/2007)
[2008] ZAKZHC 61
(29
August 2008)
[10]
Case No:6333/2010 & 16433/2012
delivered 13 June 2014
[11]
supra
[12]
@[38]
[13]
@[44]