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[2013] ZAGPPHC 530
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M.M.V.D.H v G.D.P.V.D.H (5508/11) [2013] ZAGPPHC 530 (17 April 2013)
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IN THE
NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Date: 17 April
2013
Case number:
5508/11
In the matter
between:
M M V[…]
D[…]
H[…]
................................................................................................................
Plaintiff
and
G D P V[…]
D[…]
H[…]
...........................................................................................................
Defendant
JUDGMENT
A B ROSSOUW A
J
[1] This is a divorce
action involving the characteristics of a
societate
universorum quae ex quaestu veniunt
.
[2] The plaintiff
instituted action against the defendant for a decree of divorce,
rehabilitative maintenance, a declaratory order
that a universal
partnership existed between the parties and costs. The defendant
instituted a counter claim for a decree of divorce
and a punitive
costs order.
[3] The plaintiff
subsequently delivered a notice of intention to amend her particulars
of claim in terms whereof she abandoned
her claim in respect of a
universal partnership and in lieu thereof claimed rehabilitative
maintenance in the amount of R16 500
per month for a period of one
year as well as a unique resettlement allowance in the amount of R
450 000. This amendment was never
pursued. Shortly before the trial,
the plaintiff delivered a further notice of intention to amend in
terms whereof she amplified
her particulars of claim pertaining to
the existence of a universal partnership.
[4]
Mr Kok
, who
appeared for the defendant, had his reservations about the clarity of
the plaintiff’s cause of action, but in view of
his
instructions to avoid a postponement, he did not to object to the
late amendment.
[5] The case then proceeded
on the amended particulars of claim. Prior to the amendment, the
particulars of claim relating to the
existence of a universal
partnership contained the following allegations (The numbering is my
own):
‘
1. During the existence of the marriage between
the parties the Plaintiff and Defendant acted as follows:
1.1 From March 2009 the Plaintiff applied her labour and
business skills towards the day-to-day running of the Defendant’s
business;
1.2 Therefore both parties applied their labour and
business skills to the management of the business; and
1.3 Both parties equally shared in the profits accruing
from the aforesaid business for the joint benefit of the parties.
2. In the premises a universal partnership came into
existence between the parties in respect of the business known as
G[…]
v[…] d[..] H[…] Optometrist.’
The
following additional paragraphs were inserted in terms of the
amendment (the numbering is my own):
3. During or about 2009 and at Bela – Bela ,
Limpopo Province, the Plaintiff and Defendant verbally agreed as
follows:
3.1 Parties would contribute their skills, time and
effort to a business and to share the profits and losses of the
business.
3.2 Plaintiff would resign from her profession as a
teacher in order to work full time to further the business’
interest.
3.3 The business would be called G[…] v[…]
d[…] H[…] [Optometrist] trading as G[…] V[..]
d[..]
H[…] [Optometrist] Warmbad and G[…] V[…]
d[…] H[…] [Optometrist] Nylstroom.
3.4 It was later specifically and verbally agreed that
both parties would earn salaries from the business and also that both
parties
would use the profits of the business for their respective
benefits and needs as well as for the needs of the joint household.
3.5 The Plaintiff would be responsible for the practice
management including the creditors, debtors, all personnel,
marketing, purchasing
of products, sales, overseeing the
administrative and financial expenses and obligations of the business
and do everything necessary
to further the interests of the business.
3.6 The Defendant would contribute his skills and time
and practice as an optometrist.
3.7 The parties jointly decided on the name, logo,
marketing, branding and management of the business, appointment of
staff and
a financial officer.
3.8 Since or from about March 2009 the Plaintiff
contributed her skills, knowledge, time and effort to the business,
as agreed.
3.9 The parties jointly appointed a short-term and
long-term insurer to manage their respective insurance portfolios as
well as
the portfolio of the business. The profit of the business was
used for payment of some of their personal insurance instalments.
3.10 The parties both contributed their skills,
knowledge, time and effort as agreed and shared in the profits of the
business.
3.11 Both parties were paid salaries from the business
but also utilized the profits of the business for the joint household
and
to maintain a high standard of living.
3.12 There is no express agreement regarding the
division of the profits of the business, but the parties tacitly
agreed that the
profit would be divided equally.
3.13 The business made profits for the period that both
parties jointly contributed their knowledge, skills, time and effort.
3.14 In the premises a universal partnership came into
existence between the parties in respect of the business known as
G[...]
v[...] d[...] H[...][Optometrist].
4. The partnership was terminated during or about June
2011.
5. As a result of the Defendant's conduct as more fully
set out in paragraph 6 above (this paragraph deals with the grounds
for
the breakdown of the marriage relationship), the partnership
cannot continue successfully,
alternatively
the Plaintiff is
not prepared to continue with the aforesaid partnership with the
Defendant.’
[6] In terms of the amended
particulars of claim, the plaintiff claims a decree of divorce;
rehabilitative maintenance for the plaintiff
in the amount of R16 500
per month for a period of one year; a declaratory order that a
universal partnership existed between the
parties in respect of the
business known as G[…] v[…] d[…] H[…]
Optometrist; a declaratory order that
the universal partnership in
respect of G[…] v[…] d[…] H[…]
Optometrist has terminated; that a liquidator
be appointed to take
charge of the assets of the partnership, dispose of same, pay all the
debts of the partnership and to divide
the net proceeds equally
between the parties; and costs.
[7] The defendant admits
the irretrievable breakdown of the marriage, albeit on different
grounds, but he denies that a universal
partnership ever existed and
he disputes the claim for rehabilitative maintenance.
[8] It is not clear from
the plaintiff’s amended particulars whether the plaintiff
relies on a tacit or an express (oral)
partnership agreement and
whether she relies on a universal as opposed to a specific
partnership agreement. I deal with this later
on.
[9] Three witnesses were
called, ie the plaintiff, the defendant and Ms Sauders, the former
bookkeeper of G[…] v[…]
d[…] H[…]
Optometrist. Ms Saunders was called to testify in the plaintiff’s
case. The parties handed up documents
consisting of 19 volumes, the
authenticity of which was common cause. The duration of the trial was
five days.
THE
RELEVANT FACTS
[10] The plaintiff is a graduate primary school teacher
and the defendant is a registered optometrist.
[11]
The plaintiff and the defendant met each other during September 2007.
When the parties met the defendant was a practising optometrist
in
partnership with a certain Mr Van Rooyen and the plaintiff was
employed by the Department of Education as a nursery school teacher
at B[…] K[…], Bela Bela. The plaintiff had been
employed as such for the past eleven years. The plaintiff had a son
born of a previous marriage and they were living with the plaintiff’s
mother in Bela Bela. Her son was about 12 years old
then. The
plaintiff was earning a net salary of about R10 000 per month. She
also received maintenance from her struggling ex husband
in the
meagre amount of R1 000 per month. The defendant had two sons and a
daughter born of his previous marriage. His children
were staying
with his ex wife.
[12] The defendant’s
partnership terminated on 1 March 2008. The partnership’s
businesses were divided and defendant
took over the two more thriving
businesses in Bela Bela, where he lived, and the one in Nylstroom,
with its satellite branch in
Vaalwater. The defendant retained the
personnel and his clients that he had built up over the past 22
years.
The
termination of the partnership did not affect his practice and it
continued to be a busy and lucrative business ever since.
[13] The plaintiff and her
son moved in with the defendant and about four months later (on 4
October 2008) the parties got married.
They married out of community
of property and community of profit and loss with the exclusion of
the accrual system.
[14] The defendant
persuaded the plaintiff to resign her work with a view to her
becoming involved in his practice as office manager
on a full time
basis.
[15] During April 2009 the
plaintiff resigned her work and took up her new role as office
manager. It was agreed between the parties
that the plaintiff would
manage the practice, which included the management of the creditors,
debtors, all personnel, marketing,
purchasing of products, sales, the
administrative and financial expenses and the obligations of the
business in general and that
the defendant would devote all his time
and effort to the obstetrical needs of his clients.
[16] The plaintiff
testified that she and the defendant discussed their use in equal
shares of the income of the business. She also
testified that the
defendant felt that the parties should spend their labour on the
business with a view to securing a nest egg
for their old age. This
was basically the sum total of her evidence relating to the alleged
oral partnership agreement. She also
stated that Ms Saunders was
aware of the fact that the parties shared equally in the profits. The
defendant denied ever having
discussed the sharing of the income of
the business or the entering into a partnership with the defendant.
He testified that
the agreement between him and the plaintiff was
that she would start with a monthly net salary equal to that which
she earned as
a nursery school teacher, ie R10 000, and that her
salary would be adjusted upwards from time to time.
[17] In order to place the
administration of the business on a new foothold, the parties went to
First National Bank, opened two
personal accounts and three business
accounts for the Nylstroom and Bela Bela branches as well as an
account called ‘Salaris
Rekening’. The business accounts
were opened under the name ‘G[…] v[…] d[…]
H[…] [Optometrist]’
with the defendant as the sole
account holder. Plaintiff had unrestricted access to operate on and
to make payments out of these
accounts and she also had unrestricted
access to the defendant’s personal bank account. The parties
also testified about
other accounts, which I find unnecessary to deal
with.
[18] The defendant
appointed Ms Saunders, a university graduate and qualified bookkeeper
to, inter alia, assist the plaintiff with
the financial side of the
business. Ms Saunders was of the view that there was no proper system
in place to capture all daily transactions.
In view of this
shortcoming and in order to assist the plaintiff in her new role, Ms
Saunders trained the plaintiff in Pastel,
ie a computer software
accounting programme.
[19] Ms Saunder’s
main task, however, was to prepare the business’ annual
financial statements and tax returns, which
she did from April 2009
until June 2011. She also prepared the business’s management
statements on a bi-monthly basis. Ms
Saunders never had access to any
of the parties’ personal bank accounts. Ms Saunders prepared
the books of the business on
the basis of it being a sole
proprietorship and not a partnership. She testified that no party
ever informed her about the existence
of a partnership. She also
testified that whenever she had any queries, she had to rely on the
plaintiff’s say-so.
[20] Ms Saunders testified
that at the end of June 2009 the parties decided that the plaintiff
and the defendant would receive a
net monthly salary of R15 000 and
R25 000 respectively and that same would be implemented with
retrospective effect from April
2009. She further testified that,
although the plaintiff never earned a commission, her salary would be
divided into two components,
namely, a salary and commission
component for tax purposes. According to the plaintiff it was agreed
that her starting salary would
be R15 000. The defendant denied this
and testified that the plaintiff’s agreed net starting salary
was R10 000 and that
it was increased to R15 000 at a later stage.
According to the plaintiff’s personal bank statements, her
salary was transferred
to her personal account on a regular basis.
According to the bank statements payments in amounts varying between
R10 000 and R15
000 were during the initial period transferred to the
plaintiffs personal bank account in view of which the bank statments
are
not of much assistance as to what the parties agreed to.
[21] The business’s
annual financial statements were signed off only by the defendant,
which he did on the assumption that
they were correct. Since he left
the administrative and financial side of the business entirely in the
plaintiff’s hands
and because of his wholehearted trust in her,
he never took the trouble to verify any of the figures, nor did he
question any of
her doings.
[22] The plaintiff in
administering the financial side of the business, caused money to be
transferred between the business accounts,
and between the business
accounts and the parties’ personal accounts and between their
personal accounts whenever she found
it necessary or whenever it was
so discussed between the parties. The plaintiff stated that she saw
the three business accounts
as one global pool of money that she
utilised to cover all the parties’ personal and household
expenses. According to the
plaintiff, no real distinction was made
between the business accounts and their personal accounts and it did
not really matter
from which account withdrawals were made. As
already stated, the defendant preferred not to be involved in the
financial
administration of the business and he was at peace with
whatever the plaintiff was doing.
[23] The parties also took out insurance on each other’s
lives.
[24] It was common cause
that the parties maintained a high standard of living throughout
their marriage relationship.
[25] As time went by a
number of factors contributed to the development of friction between
the parties: the defendant degraded
and belittled the plaintiff in
front of her son, the defendant humiliated her son, the parties
assaulted each other, the defendant
became insensitive towards the
plaintiff’s wishes as to how he should conduct himself toward
her son and so on, the particulars
of which I find unnecessary to
deal with. This caused a gradual heating-up of their relationship
until it reached its melting point
on 10 June 2009 when the defendant
unilaterally terminated the plaintiff’s appointment as office
manager and asked her to
leave. The defendant and her minor son left
the communal home shortly thereafter and moved in with her mother.
[26] On 23 June 2011 a
meeting took place between the plaintiff, the defendant and the
defendant’s labour consultant.
During the meeting a voluntary
redundancy package was offered to the plaintiff, which she accepted.
In terms of the agreement
the defendant would pay the plaintiff an
amount equal to three months salary and her last working day would be
30 June 2011. It
was further agreed that the payments would be
effected in three instalments, the first being at the end of July
2011. I shall henceforth
refer to this agreement as ‘the June
agreement’.
[27] The defendant refused
to honour his agreement with the plaintiff. His explanation was that
he had discovered that monies had
disappeared from his business and
that he suspected the plaintiff to be involved.
[28] During or about July
2011 the plaintiff managed to get temporary employment as a teacher
for about a month.
[29] As a result of the
defendant’s failure to make any payments in terms of the
June agreement, the plaintiff referred
the dispute to arbitration
under the auspices of the CCMA in terms of the
Labour Relations Act,
1995
. The plaintiff’s referral of the dispute was based on her
alleged procedurally and substantively unfair dismissal on 23 June
2011.
[30] During the end of
September 2011 the plaintiff instituted the present divorce
proceedings against the defendant.
[31] The aforesaid
arbitration was held on 24 November 2011 and the plaintiff was not
successful for reasons that are not relevant
to the present matter.
[32] On 8 November 2011 the
plaintiff issued a
rule 43
application. In her founding, she
said the following:
‘
Ek was sedert Maart 2009, op aandrang van die
respondent, as kantoorbestuurder in die oogkundige praktyk van die
respondent werksaam
en het ‘n maandelikse salaris van R16 500
verdien.’
and
‘
Die respondent het my ook op 10 Junie 2011
summier afgedank, en weier om my uitstaande gelde, gelykstaande aan
drie maande se salaris
soos
ooreengekom, te betaal. Die respondent weier ook om
enige statutere gelde aan my verskuldig te betaal. In hierdie verband
het ek
die KBVA en die Departement
van Arbeid genader. Op 3 Oktober 2011 het die respondent
nie by die
konsiliasieverrigtinge opgedaag nie, en is die saak na
arbitrasie verwys op 24 November 2011.’
[33] On 19 January 2012 the
plaintiff instituted action out of the magistrates’ court for
the district of Bela Bela for specific
performance of the June
agreement. The defendant issued a counter claim based on unauthorised
withdrawals in the total amount of
roughly R200 000. In
paragraph 4 of her particulars of claim in the magistrates’
court’s action the plaintiff
alleges as follows: ‘The
plaintiff was employed by the Defendant at G[…] v[…]
d[…] H[…] Optometrists
in Bela Bela.’ This
allegation was confirmed under oath in her application for summary
judgment. This matter is still
pending.
[34] The
rule 43
application was heard on 28 February 2012; and the defendant was
ordered to pay maintenance to the plaintiff in the amount of R12
000
per month pending the finalisation of the present action.
[35] On 1 May 2012 the
plaintiff succeeded to be employed on a permanent basis by the
governing body of High School Bela Bela as
a teacher with a varying
net salary averaging just over R7 500 per month.
[36] As a result of the
plaintiff’s changing circumstances the
rule 43
order was
amended on 17 October 2012 in terms whereof the defendant was
entitled to deduct the plaintiff’s salary from
the
payments he was obliged to make in terms the
rule 43
order previously
made, and that is currently still the position.
THE
SOCIETAS UNIVERSORUM QUAE EX QUAESTU VENIUNT
[37]
Our law recognizes two broad categories of
partnerships, namely universal partnerships and particular or
specific partnerships,
ie those partnerships entered into for the
purpose of a particular enterprise such as partnerships in particular
things, partnerships
limited to in a specific kind of property or
undertaking, partnerships in the exercise of some profession or art
and commercial
and trading partnerships. Universal partnerships are
divided into universal partnerships of all present and future
property (
societas universorum
bonorum
) and partnerships in
commercial undertakings (
societas
universorum qua ex quaestu veniunt
).
Particular or specific partnerships are divided into ordinary
partnerships and extraordinary partnerships and extraordinary
partnerships are divided into silent or anonymous partnerships and
partnerships
en commandite
.
(See
Wille’s Principles of South African Law
9 ed p 1014 to
1016; 19 LAWSA 2 ed para 255 and
Butters v Mncora
2012
(4) SA 1
(SCA) at 6C to E and the authorities there cited).
[38] The plaintiff alleges
in her particulars of claim that a universal partnership came into
existence between the parties in respect
of the business known as
G[...] v[...] d[...] H[...]Optometrist.
[39]
The plaintiff’s particulars of claim are
not an example of clarity and both Ms
van
der Walt
for the plaintiff, as well
as Mr
Kok
for
the defendant were uncertain as to whether the pleaded cause of
action is based on a universal partnership of the second kind
or a
specific partnership. It appears from the particulars read as a whole
that the plaintiff’s cause of action is based
on the existence
of a
societas universorum qua ex
quaestu veniunt
, but I shall
nevertheless deal with both possibilities.
[40]
As to the essential elements underlying all
partnerships our courts have over the years accepted the formulation
by Pothier as a
correct statement of our law. The four essential
elements proposed by Pothier are; 1) that each of the partners brings
something
into the partnership whether it be money, labour or skill;
2) that the business should be carried out for the joint benefit of
both parties; 3) that the object should be to make a profit; and 4)
that the contract between the parties should be a legitimate
contract. The fourth element has been discounted by our courts for
being common to all contracts. (See
Butters
v Mncora
supra at 5D to G).
[41]
Insofar as the plaintiff relies on the
existence of a particular or specific partnership, the following: It
is common cause that
the defendant was at all relevant times a
registered practitioner (optometrist) in terms of the Health
Professions Act 56 of 1974
(‘the Act’). In terms of rule
8 (1) and (3) of the Ethical Rules of Conduct (‘the Rules’)
that were published
in terms of s 49 read with s 61 (2) and 61A (2)
of the Act, a practitioner registered in terms of the Act may
practice only in
partnership with a practitioner who is registered
under the Act and only in respect of the profession for which such
practitioner
is registered, failing which, the professional board of
such practitioner could, if such a person is found guilty, inter
alia,
remove his name from the register in terms of r 2 of the Rules
read with ss 41 and
42
(1) of the Act (that is, of course, if such a penalty is legally
indicated).
(Similar
prohibitions are also contained in inter alia s 38 (1) (a) of the
Auditing Profession Act,
s 29
of the
Pharmacy Act 53 of 1974
, s 83
(6) of the Attorneys Act 53 of 1979 and
s 9
(2) of the
Admission of
Advocates Act 74 of 1964
). Even on the assumption that the parties
entered into some kind of partnership agreement, I find it highly
improbable that the
defendant would have agreed to practice in
partnership with the plaintiff in view of the risk of being struck
off the register
of optometrists.
[42]
The only remaining cause of action upon which the
plaintiff could rely is the second kind of universal partnership viz
the
societas
universorum quae ex quaestu veniunt
,
which was alongside the
societas universorum
bonorum
, recognized by Roman and Roman Dutch
Law. The
societas
universorum quae ex quaestu veniunt
has received the attention of our Courts in
Fink
v Fink and Another
1945
WLD 226
,
Isaacs
v Isaacs
1949
(1)
SA 952
(C),
V
v De Wet N.O.
1953
(1) SA 612
(OPD),
Annabhay
v
Ramlall and Others
1960
(3) SA 802
(D&CLD),
Muhlmann v Muhlmann
1981
(4) SA 632
(WLD),
Muhlmann
v Muhlmann
1984
(3) SA 102
(AD) and
Butter
v Mncora
supra).
[43]
In order to get a more complete picture of this
kind of partnership I find it necessary to quote (just about) the
whole article
contained in Pothier’s
Traite
du Contrat de Societe
that deals
with the
societas
universorum quae ex quaestu veniunt,
which could be condensed thus:
’
43.
The second kind of universal partnership is that which is called in
the Roman law
universorum quae ex quaestu veniunt,
and the
parties thereby contract a partnership of all they may acquire during
its continuance from every kind of commerce. They
are considered to
enter into this kind of partnership when they declared that they
contract together a partnership without any
further explanation. This
same kind of partnership is also considered to be entered into when
the parties declare that they contract
a partnership of all the gains
and profits they make from all sources. 44. According to the Roman
law, the
enjoyment
only of the property and not the property itself which the parties
had when they contracted the partnership, entered therein.
45. It is
only what each of the partners acquires during the partnership by
some kind of commerce, as by purchase, lending, &c.,
which falls
therein. Thus also whatever each of them acquires by the exercise of
his profession, his pay, his appointments. 46.
This partnership being
generally of all that the partners may acquire during the term of the
partnership, it suffices that one
of them may have made by some kind
of commerce any acquisition during the period, in order that it may
fall into the partnership,
even although the contract by which such
acquisition is made does not express that it is entered into on
account of the partnership.
Yet more, if the contract expressly
declares that the acquisition is made on the private account of one
of the partners, still
the others can oblige him to bring into the
common stock unless it has been made out of his own private monies
excepted from the
partnership. 47. Observe also that real estates,
although acquired by commerce during the partnership, do not fall
into it, when
the title, by virtue of which one of the partners has
acquired them, is anterior to the contract of partnership, as when,
having
bought an estate before the contract of partnership, the
tradition of conveyance of it has not been made to him until after.
In
that case, the estate is his own private property; he ought only
to account to the partnership for the money, which he has drawn
therefrom to pay the purchase–money. 48. In like manner the
property, of which one of the partners becomes owner, during
the
partnership, by the cancellation of the contract of alienation, which
he had entered into with respect to it before the contract
of
partnership, rather than by a new acquisition which he has made
thereof, does not fall into the partnership; 51. It is
only
what each of the partners has acquired under the head of commerce
during the partnership which falls into it. Whatever comes
to one of
the partners by succession, donation or legacy does not fall therein.
52. With respect to the charges on this partnership,
according to the
Roman law, the partners not bringing into it any of the property
which they had when they entered into the contract,
it ought not to
be bound by the debts which they then owed. With regard to the debts
contracted by the partners during the partnership,
the partners will
be bound by those only which are contracted for the business of the
partnership.’ (Pothier
Treatise
on the Contract of Partnership
2.1.2
(Tudor Translation)).
[44] Pothier’s short
overview of the
societas
universorum quae ex quaestu veniunt
is, as far as I could ascertain, not in conflict with the recently
introduced 17th century Roman-Dutch authority of Felicius-Boxelius
Tractatus de Societae
(Translated by JJ Henning, HA Wessels & JH De Bruyn
Perceptives
on and a Selection from Felicius-Boxelius Tractatus de Societate: A
Treatise on the Law of Partnerhip
(2006). The latter work played an all important role in
Butters
v Mncora
supra, which decision, I
think, has strengthened the position of the
Tractatus
de Societate
to become the standard
work of reference regarding the
ius
commune
of partnerships.
[45] Turning to the facts
of the case, I am of the view that the plaintiff has failed to prove
an express oral agreement of a universal
partnership of the second
kind. The plaintiff wanted the court to believe that such an
agreement was in place and in this regard
she relied on the contents
of certain discussions between her and the plaintiff, which the
latter denied. The discussions relied
upon by the plaintiff were, in
my view, typical of discussions between husband and wife regarding
their future and nothing more.
If there was an oral agreement of
partnership, it would have surfaced in various forms from time to
time, which never happened.
[46] The next question is
whether the evidence justifies a finding of a silent agreement of
partnership. As in all cases of tacit
agreements the court must
search for evidence of manifestations of conduct by the parties that
are unequivocally consistent with
consensus on the issue that is the
crux of the agreement and, per contram, any indication that cannot be
reconciled with it. At
the end of the exercise, if the party placing
reliance on such an agreement is to succeed, the court must be
satisfied, on a conspectus
of all the evidence, that it is more
probable than not that the parties were in agreement, and that a
contract between them came
into being in consequence of their
agreement. In any analysis of the evidence the most important
considerations are thus whether
either party said or did anything to
manifest his or her intention and, if so, what the reaction of the
other was. (See
Butters v Mcora
supra at 11D to F and the
authorities there cited).
[47]
It is clear from the evidence that the business
was carried out for the joint benefit of both parties and that the
object was to
make a profit. Regarding the plaintiff’s
contribution, there was no evidence placed before the court that the
salary she
received was substantially less than the market value of
the services she rendered to the business
. I am also of the
view that the conduct of the plaintiff does not translate into a
partnership agreement as alleged by her or at
all: The fact that she
never mentioned a partnership agreement, or at least her right to
share in the profits of the business to
Ms Saunders or in any of the
rule 43
applications or in the summons issued out of the magistrates
court or in any of the steps taken by her consequent upon her
dismissal
is, in my view, a clear indication that such an agreement
never existed. On the contrary, there is every indication that she
was
an employee of the business and that the idea of a partnership
only entered her thoughts after her legal team had interpreted the
facts as such. This is strengthened by the fact that she at all
relevant times prior to the institution of the present proceedings
saw herself as an ex employee and not as a partner of the business.
REHABILITATIVE
MAINTENANCE
[48] The plaintiff claims
rehabilitative maintenance in terms of s 7 (2) of the Divorce Act 70
of 1979 (‘the Act’),
which confers a discretion upon the
court to make a maintenance order in favour of one spouse against the
other.
[49] An ex wife is not
entitled to maintenance as of right, but must persuade the court to
exercise its discretion in her favour.
In doing so, she has to
provide a factual basis for a maintenance award before the court
determines the quantum and duration thereof.
(See also
AV v CV
2011 (6) SA 189
(KZP) at 192B).
[50] The factual basis that
must be provided is indicated with reference to considerations
mentioned in s (7) (2), which, in turn,
encompasses the enquiries as
to whether or not an award of maintenance should be granted, and if
so, in what amount, for what period
and under what conditions. (See
Botha v Botha
2009 (3) SA 89
(W) at 98F).
[51] In terms of s 7 (2) of
the Act the court may, having regard to the specified factors and any
other factor which in the opinion
of the court should be taken into
account, make and order which the court finds
just
in respect
of the payment of maintenance.
[52] A
‘just’ order contains a moral component of what is
‘right’ and ‘fair’. Fairness envisages
and
‘appropriate’ order between the parties, measured against
the specified factors and those other factors, which
a court decides
should also be taken into account. What is ‘appropriate’
brings one back to the moral consideration
that the order must be
‘deserved’. (See
Botha v Botha
2009 (3) SA 89
(W)
at 98D to E).
[53] Regarding
rehabilitative maintenance, Satchwell J said the following in
Botha
v Botha
l07F:
‘
The court’s understanding of rehabilitation
gives meaning to the concept and purpose of limited–period
maintenance.
The spouse who has been
disadvantaged or disabled in some way by the marriage is
enabled, through
training or therapy or opportunity, to be restored
either to the economic position
vis-a-vis employment which she occupied prior to the
marriage, or to be
reintroduced to the ability to participate effectively
and profitably in the normal economic life.’
[54] The plaintiff was
self-supporting before the marriage and she is presently not less
able to support herself neither has she
suffered in her ability to
support herself by reason of the marriage. It is true that the
plaintiff resigned her work, but it is
also true that there were no
disagreements between the parties as to her proposed course of
action. Furthermore, it is so that
the plaintiff’s present
income is less than what she probably would have received had she not
married the defendant and that
her present employment is less secure
that what is was prior to her marriage, but I also take into
consideration that the defendant
has paid maintenance to the
plaintiff for more than a year, which I find sufficient to constitute
rehabilitative maintenance. All
things considered, I am of the view
that the plaintiff is presently in a position where she can
participate effectively and profitably
in the normal economic life.
[55] In the premises I am not convinced that the
plaintiff is entitled to (rehabilitative) maintenance.
COSTS
[56] The general rule is
that costs are awarded to the successful party in order to indemnify
him for the expense to which he has
been put through having been
unjustly compelled
either to initiate or defend litigation as
the case may be. (See
Texas Co (SA) Ltd v Cape Town Municipality
1926 AD 467
at 488). This general rule is subject to the overriding
principle that the court has a judicial discretion in awarding costs.
(See
Griffiths v Mutual & Federal Insurance Co Ltd
[1993] ZASCA 121
;
1994
(1) SA 535
(A))
[57] When the plaintiff
issued the present divorce action in September 2011 she was
unemployed and in my view, entitled to rehabilitative
maintenance for
a year. Due to the defendant’s refusal to pay maintenance, the
plaintiff simply had no choice but to institute
proceedings. When the
plaintiff finally got relief on 28 February 2012 in terms of the rule
43 order, she had been without an income
for about seven months. At
all relevant times aforesaid the defendant persisted with his
attitude that the plaintiff was not entitled
to maintenance. When the
matter came before me the plaintiff’s claim for rehabilitative
maintenance, which I would have granted
had the matter been before me
prior to the expiry of one year and one month reckoned from date of
the rule 43 order, had just run
out of steam. Thus, the defendant was
not, in my view, unjustly compelled to defend the action, at least
not in respect of the
plaintiff’s claim for rehabilitative
maintenance. On the other hand, I can think of no good reason why the
defendant should
be deprived of his costs that he has incurred since
March 2013.
[58] In the result, I make the following order:
1. A decree of divorce is granted.
2. The
plaintiff’s claim for a declaratory order that a universal or
any other kind of partnership existed between the parties
in respect
of the business known as G[...] v[...] d[...] H[...]Optometrist is
dismissed.
3. The plaintiff’s claim for rehabilitative
maintenance is dismissed.
4. The
defendant is ordered to pay the plaintiff’s costs that she has
incurred up to and including 28 February 2013.
5. The
plaintiff is order to pay the defendant’s costs that he has
incurred since 1 March 2013.
________________________
A B ROSSOUW A J
DATE:
17/04/2013