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[2016] ZAFSHC 74
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J v J (4949/2013) [2016] ZAFSHC 74 (19 May 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:4949/2013
DATE:
19 MAY 2016
In
the matter between:
[P……]
[G……]
[J……]
..............................................................................................................
Plaintiff
And
[A……]
[E……..]
[J…….]
.......................................................................................................
Defendant
CORAM:LEKALE,
J
HEARD
ON: 4 & 6 MAY 2016
JUDGMENT
BY: LEKALE, J
DELIVERED
ON: 19 MAY 2016
BACKGROUND
AND INTRODUCTION
[1]
Marriage, as a social institution, is not a business enterprise and
parties thereto do not generally regard each other with
calculated
prudence as
shrewd
business individuals would each other when engaged in business
transactions. They do not keep precise records of the favours they
extend to each other, nor do they, as a matter of course and
practice, reduce their daily undertakings to each other to writing.
They are guided, in their dealings with each other, by trust and
unquestioning acceptance that they would be together as husband
and
wife until “
death do [them] part
”.
They generally
remain
gullible towards each other until their love for each other loses its
flame and only then do they start to gaze around and
tread with care
and suspicion as against each other.
[2]
The aforegoing propositions are borne out by the facts in the instant
matter. Parties hereto are a couple married out of community
of
property excluding accrual system. As at the date of the marriage
viz.
the
26 January 2008 the defendant, who is a web master in the employ of
the Mangaung Metropolitan Municipality, was the registered
owner of
an immovable property (the property) over which was registered a
mortgage bond.
[3]
Prior to the marriage and during the course thereof the plaintiff, a
self-employed female painter by profession, modified and
developed a
shed outside the house on the property into an art studio in which
she worked until the 25 November 2013 when she left
the property
which the parties had been occupying jointly as their common home.
[4]
At all times material to the parties’ cohabitation as a married
couple the plaintiff used her financial resources to help
maintain
and improve the property. The plaintiff, further, advanced the
total amount of R229 000 to and on behalf of
defendant in
differing amounts as and when she was able to do so commencing in
February 2008, which funds were used to service
the bond account
relating to the property.
[5]
On the 21 November 2011 plaintiff deposited a further R200 000
into the bond account and, thus, reduced the balance outstanding
thereon accordingly.
[6]
The marriage relationship between the parties deteriorated
over time to such an
extent that, on the 20 November 2013, plaintiff launched the present
proceedings claiming,
inter
alia
,
decree of divorce on the ground that the marriage has reached such a
state of disintegration that there
exist no reasonable
prospects of restoration of a normal marriage relationship between
the parties.
[7]
Plaintiff, further, claims payment of R229 000 and mora interest
as claim number 2 , payment of R200 000 and mora
interest
thereon as claim number 3 and payment of R71 000 together with
mora interest as claim number 4 on the basis
of alleged verbal
loan agreements and unjust enrichment respectively.
[8] Defendant
resists the claims save for admitting that:
8.1
the marriage between the parties has broken down irretrievably;
8.2
payments amounting to R429 000 in total were made by plaintiff
to him or on his behalf; and
8.3
plaintiff spent R71 000 on developing the art studio on the
property.
[9]
Defendant’s position is that such payments and expenses were
made and incurred as unconditional donations to him by the
plaintiff
in the same way as he did in favour of the plaintiff.
ISSUES IN DISPUTE
[10]
It is clear
ex facie
the parties’ rule 37 minute as well as submissions before the
court that they are at variance on:
10.1
whether or not the plaintiff advanced the total amount of R429 000
to and on behalf of the defendant as a loan in terms
of agreements
between the parties;
10.2
Whether or not the defendant was unjustly enriched at the expense of
the plaintiff to the total amount of R71000;
10.3
who should bear the costs of the matter between the parties.
PLAINTIFF’S
VERSION
[11]
The plaintiff testified as the sole witness in her case to,
inter
alia
, the effect that prior to
advancing money to the defendant the latter pointed out that, because
of their matrimonial property system,
he would pay back all money
advanced to him regard further being had to the fact that the
plaintiff was self-employed with no fixed
income. Any money
paid to and on behalf of the defendant is, thus, repayable as a
loan. In October 2011 she won the
Helgaard Steyn award and
received R250 000 in prize money which she decided to invest
and, as such, made enquiries at First
National Bank and Investec with
regard to interest rates. The defendant, who used to accuse her
of not knowing how to deal
with money, advised her to pay the amount
into the bond account. Defendant undertook to pay more interest
than Investec because
they, as a couple, were going to save on
interest payable on the bond account. She agreed and paid
R200 000 into the
bond account. Defendant, further,
informed her that the bond account was to serve as her savings
account in the sense that
all the money she paid into the same
remained hers. She only received R16 000 from defendant as
interest which amount
was used by defendant to buy an Optoma data
projector for her at her instance.
[12]
She further made improvements on the property such as installing
insolation in the roof but she is not claiming anything in
that
regard. Her father also spent a lot of money on developing the
studio for which she is claiming only
R71 000.
She did not donate the money to the defendant. She confirmed
the contents of her affidavit filed in support
of the Rule 43
application. When it was necessary to pay or spend money on the
property she did so without first discussing
the issue with the
defendant and without seeking his permission. She even used to
pay domestic workers for their services
and to transport them home
all because she wanted to make the marriage work. On his part
defendant made her the sole heir of his
estate in his Last Will and
Testament.
DEFENDANT’S
VERSION
[13]
The defendant testified in support of his plea to,
inter
alia
, the effect that he never
concluded any loan agreements with the plaintiff and that all the
money advanced to him or on his behalf
by the plaintiff were
unconditional donations motivated by love. He also donated
money to the plaintiff and expended funds
for her benefit. He
has no use for the art studio and has, as such, not been unjustly
enriched at her expense. No records
were kept of moneys
exchanged between them as husband and wife. He only heard and
learnt that plaintiff expected repayment
in 2013 when the latter left
the common home. He wanted and expected the present marriage to
be his last following two previous
marriages which were
unsuccessful. The property was their home in the sense that it
was as much plaintiff’s home as
it was his. Plaintiff
used to attend to issues calling for attention in the house without
discussing same with him or asking
for his permission. The
general practice was for either of them to attend to such issues
quietly. He now uses the studio
for storage. He suggested
to the plaintiff that she deposit the R200 000 into the bond
account. He, effectively,
confirmed that he filed an affidavit
in opposition of the Rule 43 application in which he,
inter
alia
, admitted that in February 2008 he
suggested to the plaintiff that she deposit money into the bond
account as and when it was available.
CONTENTIONS
FOR AND ON BEHALF OF THE PLAINTIFF
[14]
In argument Mr Grewar submits that the court should make value
judgment on the evidence before it and that it is clear that
the
plaintiff is soft and a little naïve insofar as she was
motivated by the wish to make the marriage work when she paid
the
relevant amounts over to the defendant. The agreement between
the parties was for the plaintiff to use the bond account
as her
savings account and the defendant asked her to deposit her prize
money into the said account. Defendant failed to
explain how
and when the alleged donations were accepted insofar as a donation is
a contract. Defendant was unjustly enriched
at the expense of
the plaintiff regard being had to the improvements relating to the
art studio. The fact that no expert
evidence was tendered to
prove the amount by which the property was enhanced does not detract
from the fact that the studio has
a value by which defendant is
enriched. Not even the fact that defendant does not use the
studio as the plaintiff did detracts
from its general value.
CONTENTIONS
FOR AND ON BEHALF OF THE DEFENDANT
[15]
On behalf of the defendant Mr van Aswegen contends that the overall
onus was on the plaintiff to prove the various claims and
not on the
defendant. The presumption against donation does not shift such
an onus. The fact that the parties were
intimate to each other
renders the making of a donation probable in the instant matter.
[16]
The plaintiff’s evidence to the effect that the bond account
was used as her savings account is inconsistent with the
existence of
loan agreements. The evidence before the court shows that the
plaintiff felt obliged to make a contribution towards
the upkeep of
the property as the couple’s common home. The enrichment
claim has not been proved insofar as no expert
evidence was tendered
to prove the value by which the property was enhanced insofar as the
plaintiff’s claim is apparently
for alleged useful expenses.
In his view plaintiff could not even give the exact amount she spent
on developing the studio
in question. The relevant claims
should be dismissed with costs.
APPLICABLE LEGAL
PRINCIPLES
[17]
In a case where the court is confronted with conflicting versions
which cannot be reconciled it adopts a holistic approach
to the
matter and has regard to probabilities, among others. (See
State v Guess
1976 (4) SA 715
(A) and
Stellenbosch
Farmers’ Winery Group Ltd & Ano. v Martell & Cie SA and
Others
2003(1) SA 11 (SCA) at para
[5]).
[18]
The so-called presumption against donation serves to saddle a
litigant who raises donation as a defence in his plea with
evidentiary
burden as opposed to overall onus of proof which never
shifts
and
remains firmly embedded on the litigant claiming back what he or she
advanced to or disbursed for such other litigant.
(See
Barkhuizen v Forbes
1998 (1) SA 140
(E) and
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534
(A)).
[19]
A loan agreement is a contract in terms whereof one party agrees to
advance money to or to disburse same for another who accepts
the same
and undertakes to repay the same on agreed terms and conditions. (See
Mahomed & Son Ltd v Estate
Horvitch
1928 AD 1)
A
donation, on the other hand, is, in our law, genuine if it is made
out of pure liberality in the sense that the donor was
motivated by
no reason other than sheer liberality in making the donation.
(See
De Jager v Grunder
1964 (1) SA 446
(A) at 463c-g and
Kay
v Kay
1961 (4) SA 257
(A)).
[20]
In our law
bona fide
possessors and lawful occupiers can
enforce their right to compensation for necessary and useful
improvements against the owner
of the property through enrichment
action. For the expenses incurred on improvements to be
regarded as useful (
impensae utiles)
same must result in
actual tangible improvement of the land and the market value of the
property should be enhanced by such an
improvement. (See
McCarthy Retail Ltd v Shortdistance Carriers
2001 (3)
SA 482
(SCA) at 489F-G).
[21]
A claimant for useful expenses may recover the lesser of an amount
equal to the value by which the property has been enhanced
and the
actual expenditure incurred. (See
Nortje
v Pool
1966 (30 SA 96
(A) at 131G).
[22]
Absolution from the instance is an appropriate order where, at either
the close of the plaintiff’s case or the close
of the case when
both parties have had the opportunity to present whatever evidence
they consider to be relevant, the evidence
available before the court
is insufficient for a finding to be made against the defendant. Such
an order does not bar the plaintiff
from reinstituting the action
insofar as it has not prescribed. As opposed to a positive finding
that no claim exists against the
defendant “
it
is the appropriate order when after all the evidence the plaintiff
has failed to discharge the normal burden of proof.”
(See
Principles of
Evidence- Revised 3rd Edition, PJ Schwikkard and SE van der Merwe at
Chapter 32 page 578
)
APPLICATION OF
LEGAL PRINCIPLES AND FINDINGS
[22]
As pointed out earlier in the judgment the parties are, in effect,
ad
idem
that their marriage is beyond
salvation. I am also persuaded by available evidence that it is in
the interests of social justice
and healthy family relations for the
parties to go their separate ways.
CLAIM
2
[23]
The parties are in agreement that the plaintiff advanced a total
amount of R229 000 to defendant by,
inter alia
,
depositing the same into the bond account. On the papers the
plaintiff asserts that the amount in question was a loan payable
on
demand. Defendant disagrees and maintains that the amounts in
question were unconditional donations to him. A look
at the
plaintiff’s oral evidence before me and deposition in the Rule
43 application reveals that the parties never specifically
and
expressly agreed that the transactions were loans. According to the
plaintiff defendant undertook to repay the amounts regard
being had
to the fact that the parties were married out of community of
property excluding accrual system and the plaintiff did
not have a
fixed income. It is, further, plaintiff’s case that
the defendant pointed out that the amounts paid
into the bond account
remained her property and were, thus, repayable. The parties
are effectively in agreement that the
property was their common home
and the plaintiff contributed to its upkeep because she wanted to
make the marriage work.
Plaintiff made the first payment into
the relevant account shortly after the marriage
viz.
on 27
February 2008. At the relevant time the parties were, most
probably, overwhelmed by their love and affection for each
other
which clouded their vision to the extent of rendering the plaintiff
“
a little naïve
” in Mr Grewar’s words.
Defendant even allowed plaintiff to accompany him when he attended to
bequeathing his
estate to her as the sole heir in his Last Will and
Testament.
[24]
The parties are, further,
ad idem
that defendant also paid cash amounts to the plaintiff and expended
some funds for and on her behalf. It is possible, as
Mr Van
Aswegen submits, that in the light of the parties’ love for
each other during the early years of their marriage and
their mutual
intimacy they exchanged gifts and made donations to each other. It
is, however, more probable, in my view, that the
plaintiff regarded
the property as the couple’s joint property and expended money
thereon in that view, motivated, further,
by benevolent desire to
improve and maintain their lifestyle as a professional married
couple. It is clear from her evidence
that she even attended to
maintaining the property without even discussing issues involved with
the defendant as the registered
owner. Her evidence was,
further, to the effect that defendant stated that the bond account
was her savings account which
statement suggests, in my opinion, that
the plaintiff was to have access to the account as and
when she needed funds
in the same manner in which the defendant
utilised the account to purchase a new motor vehicle when he needed
one. I am,
thus, not persuaded that the payments were
consciously and intentionally made as part of either a loan
transaction or a donation.
In my judgment such payments were
made as plaintiff’s contribution towards the household and in
good faith inspired by a
desire to make the property acceptable as a
home for a couple of their class. In this regard it should be
recalled that defendant’s
evidence was to the effect that the
property was as much the plaintiff’s home as it was his.
It was the parties’
joint hope and wish to stay married in line
with the vows they exchanged when they first entered matrimony.
CLAIM 3
[25]
It is, further, common cause between the parties that the plaintiff
deposited R200 000 into the bond account on defendant’s
advice. Plaintiff’s evidence in this regard is to the
effect that the account was once again to be used as her savings
account. I am not persuaded by available evidence that the
deposit was made as either a loan or donation to the defendant.
Defendant was not very clear on the issue but did not dispute that he
advised the plaintiff against investing the money with Investec
and
encouraged her to deposit it in the bond account to save on interest
payable on the same. It is, in my view, highly improbable
that
plaintiff would donate the relevant funds when her intention was to
invest the same and she had already taken steps to realise
that dream
by enquiring after applicable interest rates.
[26]
If the bond account served as a savings account for the plaintiff she
was entitled to access the funds as and when she desired
in
accordance with the terms and conditions applicable thereto.
The parties were once again, in my view, most probably treating
the
bond account as a joint or a family account with the defendant, as
the head of the family, holding the account for the family.
According to the plaintiff the R16 000 saved on interest payable
on the account was used to purchase a data projector for
her as
interest payable to her on the loan amount. Defendant disputes that
the transaction was a way of paying interest on the
loan amount and
effectively contends that he donated the data projector in question
to the plaintiff as his wife. In my opinion
the fact of the relevant
projector is neutral in the sense that it neither advances the
defendant’s case that the money was
advanced to him as a gift,
nor proves that the money was lent and advanced to defendant insofar
as the plaintiff’s evidence
is to the effect that the account
was used as her savings account. On her evidence, it is possible, in
logic that the projector
was effectively purchased with funds from
that account as plaintiff’s way of accessing the same through
the defendant as
the holder of the account.
[27]
If there was any R200 000 lent and advanced to the defendant by
the plaintiff, then and only in that event it is, on available
evidence, not the one testified about and referred to by the
plaintiff in the present matter. Plaintiff did not, therefore, tender
evidence sufficient to sustain this claim.
CLAIM
4
[28]
The parties are
ad idem
that the plaintiff incurred expenses in converting the shed on the
property into an art studio. Defendant effectively admitted
that R71 000 was expended in this regard in his plea. He,
however, denies that the market value of the property has been
enhanced thereby with Mr van Aswegen pointing out that, although an
expert notice was filed by the plaintiff for this purpose,
no
evidence was tendered to prove the fact of the improvement by
establishing the value of the property subsequent to the development
of the studio.
[29]
The onus was on the plaintiff to prove that the market value of the
property has been enhanced by the studio in question. It
is true, as
submitted by Mr Grewar, that the studio has some value. There is,
however, in effect no evidence to show that the defendant
has been
enriched insofar as there exists no evidence whatsoever before the
court to show that the value of the property has been
enhanced by the
studio. It was for the plaintiff to prove the fact of the enrichment
on the part of the defendant and, with respect,
not for the court to
suck the value of the property following the relevant development out
of the thumb. The court is, accordingly,
not able to determine
whether or not the actual expenses incurred are recoverable as being
less than the value by which the property
has been enhanced. All that
the court knows as a matter of evidence is that plaintiff incurred
expenditure in the amount of R71 000
on converting the shed into
the art studio. The action on this claim is, however, not simply for
the recovery of such expenses.
It is an enrichment claim which must
be proved in accordance with applicable law. The defendant, thus,
stands to be absolved.
(See
Wuldfling-Eybers
v Sandprops
2587 Investment CC
1994
(4) SA 640(C)).
COSTS
[30]
Mr Van Aswegen argues for costs against the plaintiff and points out
that the claim for a decree of divorce is neutral to the
issue
because the parties were effectively in agreement thereon. It
is, further, clear from the Rule 43 papers that the defendant
was
ordered to make a contribution towards plaintiff’s costs in
that regard.
[31]
There exists no cause before me to depart from the general principle
with regard to costs as far as the other claims are concerned.
The successful party is, in equity, simply entitled to its costs.
ORDER
[32]
In the result the decree of divorce is granted.
[33]
An order of absolution from the instance is granted with costs in
favour of defendant on claims 2; 3 and 4.
LJ LEKALE, J
On
behalf of plaintiff: Adv. D Grewar
Instructed
by:
Spangenberg
Zietsman & Bloem
Bloemfontein
On
behalf of respondent: Adv. W Van Aswegen
Instructed
by:
McIntyre
& Van der Post
Bloemfontein