About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2011
>>
[2011] ZAKZDHC 58
|
|
I.H.L v A.M.L (4172/2007) [2011] ZAKZDHC 58 (29 November 2011)
1
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE
NO: 4172/2007
In
the matter between
I
H L
….............................................................................................................
Plaintiff
and
A
M L
…......................................................................................................
Defendant
_____________________________________________________________________
JUDGMENT
Delivered
on 29 November 2011
______________________________________________________________
MURUGASEN J
[1] The plaintiff, I H L, instituted
an action for divorce against the defendant A M L on the grounds of
irretrievable breakdown
of the marriage between the parties and there
being no reasonable prospect of the restoration of a normal marital
relationship
between them.
[2] In defending the action the
defendant relies on certain practices of and beliefs espoused by the
religious institution to which
she and the plaintiff belong, her
constitutional rights and Section 5 A of the
Divorce Act No 70 of
1979
. She contends that her marriage to the plaintiff lies for
annulment as his previous Christian marriage was not dissolved as a
result
of the adultery of his then wife, Diana. This constituted a
religious impediment to the plaintiff’s marriage to her. The
defendant claims damages premised on such annulment, and various
other patrimonial losses suffered by her during the marriage, and
monies allegedly owed to her by the plaintiff and the juristic
entities of which he is a member.
[3] It is common cause that the civil
marriage between the plaintiff and Diana was dissolved by a decree of
divorce granted in the
Brisbane Family Court of Australia on 8
January 1990. There was accordingly no legal bar to the marriage
between the parties. It
is also common cause that on 27 March 1992 at
Hillcrest KwaZulu-Natal, the parties entered into a civil marriage
out of community
of property with the exclusion of the accrual system
and that there were no children born of the marriage between the
parties.
The parties had also entered into a Christian union in a
religious ceremony.
The parties represented themselves in
these proceedings. Neither party called any witnesses.
Summary of Background
[4] The acrimonious personal
relationship between the parties has manifested itself in numerous
applications and counter-applications
against each other, which were
regularly enrolled for hearing but failed to achieve any
finalization. The matters were generally
adjourned
sine die
,
only to be either re-enrolled or to appear under the guise of an
another application or counter application, the main reason therefor
being the failure of the parties to place the matters properly before
the court, particularly by mulcting applications by irrelevant
documentation or failing to provide a sound legal basis for the
application.
[5] It is therefore appropriate that
this judgment contain a summary of the litigation and a record of the
manner in which the parties
have conducted themselves in the course
of all the litigation.
[6] Only the divorce action was set
down for trial from 16 to 20 May 2011. However the pleadings and
documents in all the applications
and actions between the parties
were placed before this court because the defendant in particular
persisted with certain applications
which, in her view, needed to be
heard in tandem with the divorce although these matters were not set
down for hearing before this
court.
[7] Nevertheless in a concerted
endeavor to finalize and dispose of at least some of the litigation
that has rolled on from year
to year, increasing in volume and
‘cause’ with any resolution and resulting in an
incomprehensible morass of pleadings,
I attempted to introduce some
measure of legal credibility deserving of the time and resources
demanded by a full scale trial,
by first determining and then hearing
the issues that lay for ventilation.
[8] The parties were ill prepared; no
bundles of documents that the parties intended relying on were ready
at the commencement of
the hearing, although the parties were aware
that the matter was enrolled for trial.
[9] Despite being afforded the
opportunity to do so the parties presented the court with unbound and
unpaginated bundles of documents,
assembled without any cogniscence
of their relevance to the issues for determination. During the
proceedings legal terminology
was frequently utilized without
recourse to its meaning or defining principle or relevance to the
issues for determination, which
demanded forbearance born only of the
stoic hope that another court would not be similarly burdened if some
degree of resolution
could be reached during the proceedings before
me.
[10] When the divorce action was set
down for hearing in 2010, the late Judge President of this division,
having had sight of the
unwieldy morass of papers, resorted to
assistance from the Durban Justice Centre to lend some order to the
documents and to separate
them in accordance with the various
applications they related to.
[11] This was a difficult exercise
given that most pleadings bore the same case number irrespective of
the causa and often identical
pleadings and /or supporting
documentation were filed although purporting to be in respect of an
independent application or to
refer a different issue for
determination.
[12] On the last occasion when the
parties were in court prior to the divorce trial, the defendant
enrolled on the unopposed motion
roll an application for the
consolidation of three actions or applications: the first being an
action for monies loaned and advanced
by the defendant to the
plaintiff, the second an action against a close corporation of which
the plaintiff was allegedly the sole
member, and the third an appeal
against an order of the maintenance court in Empangeni. That
application was adjourned as the court
had no idea which application
was before it and refused to read papers which were not indexed or
paginated.
[13] When the matter commenced before
this court, the defendant raised as a bar to the divorce trial
proceeding, an action which
had been launched by the plaintiff
consequent to the defendant disputing a consent agreement entered
into by the parties on 13
July 2009, in which the plaintiff sought to
enforce the consent agreement which was disputed by the defendant
although she had
appended her signature thereto. It transpired that
the proceedings had commenced by way of an application under case
number 2668/2010
and thereafter in terms of an order of court dated
22 February 2010, the plaintiff had instituted an action for the same
relief.
[14] The file under case number
2668/2010 was drawn from the Registrar’s office and a perusal
thereof revealed that the file
only contained a few formal notices
pertaining to the filing of documents. Other pleadings in respect of
the action were filed
under case no 4172/2007.
[15] However the plaintiff advised the
court that he had withdrawn the application and action as he no
longer sought the enforcement
of the consent agreement between the
parties. The notice of withdrawal could not be located nor could the
plaintiff himself furnish
a copy thereof. The plaintiff then withdrew
the action at the hearing. There was no objection to or submissions
made by the respondent
in respect of the withdrawal of the
application and action.
[16] Although the application for
consolidation was not before this court, the defendant at that stage
persisted that a consideration
of the application was necessary and
integral to the relief sought in her counterclaim in the divorce
action.
[17] In order to introduce a measure
of control and consistency into the proceedings and limit the issues
for determination, an
enquiry in terms of Rule 37 of the Uniform
Rules was conducted with the parties.
[18] At the commencement thereof I was
furnished with a Rule 37 minute signed by the parties dated at
Richards Bay on 11 August
2010, for a Rule 37 conference held at the
Ngwelenzane Magistrates Court. Despite her signature thereon, the
defendant disputed
the validity of the conference on the basis that
“it was to late for me to take any action”. For the sake
of expedience
and facilitating progress the court decided that the
Rule 37 proceedings should be held afresh.
[19] Prior to the commencement of the
Rule 37 conference, the plaintiff filed a notice of withdrawal dated
6 May 2009 in which he
withdrew his notice in terms of Rule 28 and
his request for further particulars dated 25 March 2009.
[20] I do not intend traversing the
discussions during the Rule 37 conference, as the proceedings are on
record. It only remains
appropriate to note that consensus was
reached that three issues lay for determination by this court in
respect of the divorce
action :
The cause of the breakdown of the
marriage.
Whether
Section 5A
of the
Divorce Act
No 70 of 1979
applied to the marriage between of the parties; and if
it did, whether the court should order an annulment of the marriage
or
a decree of divorce. If an annulment was ordered, the court had
to determine whether the defendant had suffered damages and if
she
had, the quantum thereof.
Whether the plaintiff owed the
defendant the sum of R144 832.23 being monies loaned and advanced to
the plaintiff by the defendant
for which the defendant had
instituted an action against him under case no. 4803/2007, but which
also formed part of her counterclaim
in the divorce action.
[21] It must be noted that although
the legal principles and the validity of the aforementioned issues
were not clear, the distillation
of the three issues was an attempt
to afford the unrepresented litigants the opportunity to ventilate
the issues which, once evidence
was lead and/or argument advanced by
the parties, may have been clarified and found to be premised on
sound legal grounds, alternatively
dismissed as bad in law.
[22] The parties were urged to
consider the issues that had been identified for determination before
the proceedings continued and
whether the issues were indeed relevant
and necessary for the relief sort by the parties.
[23] It also lies to be noted that
after the issues for determination were finalized, the defendant
withdrew her application for
consolidation under case no. 4172/2007
in respect of case no. 4803/2007, 4804/2007 and the appeal against
the order of the maintenance
court.
[24] At the commencement of the
hearing on 19 May 2011, the previous proceedings were summarized, the
parties confirmed the status
of the matters that had been settled, or
were not for determination before this court and placed on record
that they were satisfied
with the issues for determination and that
the trial should proceed on that basis.
[25] It lies to be noted that during
the hearing in November 2011 the defendant denied that she had agreed
that the aforementioned
issues were the only issues for
determination. Prior to the recommencement of the hearing on the
following day, I listened to the
audio-record of the proceedings when
the issues were decided on and was satisfied that the parties had
agreed thereto. The parties
were advised accordingly and the trial
continued without further objection or dissent by the defendant.
The divorce
[26] The pleadings in the divorce
action consisted of :
the summons dated 17 April 2007 as
amended by the particulars of claim dated 27 November 2007;
the defendant’s plea dated 12
June 2007;
the defendant’s claim in
reconvention dated 9 March 2008;
the plaintiff’s plea to the
defendant’s claim in reconvention dated 27 March 2008 and his
plea in the alternative
also dated the 27 March 2008.
[27] The following exhibits were
admitted :
Exhibit A : the Plaintiff’s
bundle consisting of 205 pages
Exhibit B : which consists of the
marriage certificate, the anti-nuptial contract, the plaintiff’s
divorce order form his
first marriage, the plaintiff’s divorce
application in respect of his previous, the defendant’s divorce
application
in respect of her previous marriage.
Exhibit C : the defendant’s
bundle. This bundle was so unwieldy that it was split into
parts 1
&
2
. The number of pages cannot be specified because of the erratic
paginating.
No disputes were raised in respect of
the documents in the bundles.
I restrict the evidence in this
judgment only to what is pertinent to the issues for determination.
The cause of breakdown of the
marriage
[28] Although it is common cause that
the marriage between the parties had irretrievably broken down and
that there are no prospects
of a restoration of a normal marriage
relationship, the cause of the breakdown was in issue because the
defendant disputed the
plaintiff’s allegations that she was the
cause thereof, and contended that the plaintiff was the effective
cause of the breakdown
because he had misrepresented the cause of
breakdown of his previous marriage to her; there was therefore a
religious impediment
to the marriage between them and their marriage
lay to be annulled as it was a putative marriage.
[29] The plaintiff testified that the
reasons for the breakdown of the marriage were as set out in the
particulars of claim and
that there were no prospects of restoration
of a marriage relationship between the parties. He testified further
that according
to the Christian beliefs held by the parties there was
no impediment to his marriage to the defendant when it took place. He
had
provided to the satisfaction of the marriage officer who
conducted the legal marriage of the parties, the documents relating
to
the dissolution of his previous marriage on 8 January 1990. He
testified that the parties had also entered into a Christian union
by
way of a religious ceremony to which there was also no religious bar.
[30] The defendant then proceeded to
crossexamine the plaintiff, placing in dispute the breakdown of the
marriage. In the course
of such crossexamination, she disputed that
it was her conduct that led to the breakdown of the marriage, but
that their relationship
had deteriorated as a result of the conduct
of the plaintiff in fraudulently misrepresenting to her that his
divorce from his former
wife had been sanctioned by their Christian
beliefs as a result of her adultery. She submitted to the plaintiff
that in 2006 he
unexpectedly admitted that the breakdown of his
marriage was not due to his former wife’s adultery, but was
caused by the
interference of her father; consequently the
plaintiff’s divorce from Diana was not valid and binding in
terms of their Christian
beliefs and constituted a religious
impediment to their marriage. Their marriage was therefore putative
and
section 5A
of the
Divorce Act 70 of 1979
rendered an annulment
appropriate relief.
[31] At this stage the court attempted
to explain to the defendant that
Section 5A
would only apply if there
was a valid marriage and that she could not seek annulment of their
marriage as being void
ab initio
and claim damages and
simultaneously seek an order that
Section 5A
applied to their
marriage.
[32] The trial was then adjourned. On
resumption on 16 November 2011, the defendant conceded that if the
marriage that subsisted
between the parties lay to be annulled, then
she could not persist with seeking relief in terms of
Section 5A.
[33] The defendant also conceded that
the marriage relationship had irretrievably broken down. She only
persisted with the contention
that the plaintiff had not been free to
marry her because his divorce from Diana was not as a result of her
adultery because the
plaintiff had failed to depose to an affidavit
or swear positively that Diana had committed adultery and had
misrepresented the
reason for his divorce from Diana.
[34] In response the plaintiff
testified that although he did not have proof that Diana had
committed adultery he was certain she
had, and during their
discussions she had come close to admitting her adultery. This had
been sufficient to confirm her adultery
and they had agreed to
proceed with the divorce. He confirmed that there were also other
reasons for the breakdown of their marriage,
of which he had informed
the defendant.
[35] The defendant then advised the
court that as the plaintiff had confirmed under oath that his
marriage to Diana had been dissolved
as a result of her adultery she
was satisfied that there had been no impediment to her marriage to
the plaintiff and that she no
longer persisted that the marriage was
putative and lay to be annulled.
That was the case for the Plaintiff.
[36] The defendant then testified. She
alleged that although it was common cause that there was an
irretrievable breakdown of the
marriage, it was the plaintiff who was
the cause of the breakdown as he had maliciously deserted her and as
she had suffered damages
as a result of such malicious desertion, the
plaintiff was liable to compensate her therefor.
[37] Although the defendant had agreed
during the
Rule 37
proceedings that the issue of damages would arise
only if the court found that the marriage lay to be annulled, and the
defendant
subsequently conceded that the Christian marriage was
valid, as there was no religious impediment as she originally
alleged, she
persisted that the court had misunderstood her, she had
always intended to pursue the damages sought in her plea and
counterclaim,
and she was entitled to a forfeiture of assets although
she was married out of community without accrual in terms of the
Matrimonial Property Act No 88 of 1984
.
[38] When requested for authority for
such a claim, the defendant relied on
S2.4
of the
Divorce Act, South
African Family Law 2
nd
Ed Cronje & Heaton paragraph
7.2 at pages 96 -97; paragraph B41 of LAWSA Volume and the following
2 cases: Shanahan v Shanahan
(1907) 29 NLR 15
and Voortrekker Winkels
(Ko-operatief) BPK v Pretorius
1951 (1) SA 730
(T).
The defendant’s claim for
‘Forfeiture of assets’ and damages
[39] When the accrual system is
expressly excluded in the antenuptial contract of a marriage out of
community, the parties do not
have any (patrimonial) claims against
each other in terms of the provisions of either the
Matrimonial
Property Act or
the
Divorce Act, regardless
of the type of marriage
or union.
A Practical Guide to Patrimonial Litigation in Divorce
Actions Van Niekerk Lexis Nexis 13
th
Issue
September 2011 page 1-8 & 2-2.
[40] In terms of
section 9
of the
Divorce Act, a
court which grants a decree of divorce has a
discretion to order that the patrimonial benefits of the marriage be
forfeited to
the other either wholly or in part under certain
circumstance. Parties married out of community of property can claim
forfeiture
of benefits arising upon marriage, which benefits can
potentially include donations in terms of an antenuptial contract,
donations
made during the course of the marriage and the right to
share in the accrual of the estate. In the exercise of its discretion
to
order forfeiture, the court will consider factors leading to the
breakdown of the marriage and any substantial misconduct of the
parties.
[41] The defendant has failed to
specify the benefits that she alleges are to be forfeited to her.
Further she has failed to prove
on a balance of probabilities that
there was substantial misconduct on the part of the plaintiff. The
court was faced with mutually
destructive versions, and the main
reason for the breakdown as alleged by the defendant, viz the
plaintiff’s alleged fraudulent
conduct and the consequent
religious impediment, proved to lack any merit.
[42] The court ruled that the
defendant’s reliance was misplaced and ill founded and that she
had no legal basis for such
claim of forfeiture. It was therefore not
necessary to hear further evidence on this issue.
[43] The defendant persisted that she
still had valid claims for damages against the plaintiff in her claim
in reconvention, and
referred the court to the documentation she
relied on to support her claims. The documentation relied on is on
record and it is
not necessary to list them herein.
Universal partnership?
[44] From the averments in the
defendant’s plea and counterclaim, she appears to rely on
universal partnership to ground her
claim for damages against the
plaintiff, although not specifically pleaded. It therefore appears
appropriate to briefly consider
whether she has a claim premised on
universal partnership.
[45] Where a party claims universal
partnership he or she must allege and prove that the contracting
parties agreed to put in common
all their property both future or
existing (
universorum bonorum)
or that they contracted that
whatever they acquire during the marriage, from any kind of commerce
will be property of the partnership
(
universorum quae ex quaestu
venlunt)
. But prior to an examination of the averments of the
party relying on universal partnership, the antenuptial contract that
governs
the marriage of the parties needs be examined. (
Wiid v
Wiid
[2011] JOL 27572
(NCK
).
[46] The antenuptial contract entered
into by the parties on 9 October 1991 specifically contains the
following exclusions:
‘
(a) There shall be no community
of property between them.
There shall be no community of profit
and loss between them.’
[47] The aforegoing terms of the
antenuptial contract do not distinguish between property existing at
the time of the marriage or
property acquired during the marriage
whatever the cause of the acquisition. Therefore a universal
partnership which contemplates
an agreement that the movable and
immovable properties of the parties would form assets of a
partnership between them is irreconcilable
with the antenuptial
contract. There is therefore no proper legal basis for the
defendant’s allegation that a Universal Partnership
exists
between the parties, nor is a claim for damages competent on the same
grounds.
[48] The defendant’s claim for
damages arising from the sale and mortgaging of her properties on the
grounds that she relocated
at the instance of the plaintiff and
accessed funds to assist him and to fund their business ventures were
not sustained by the
documents she relied. (In any event the
defendant has instituted various other actions in respect of debts
incurred during their
joint venture, which were separated during the
Rule 37
conference as they were not incurred by the plaintiff in his
personal capacity and the juristic entities are not party to this
action. Only the action for monies lent and advanced was retained for
hearing.)
Section 5
A of the
Divorce Act
70 of 1979
[49]
Section 5
A provides :
‘
It is appears to a court in
divorce proceedings that despite the granting of a decree of divorce
by the court the spouses or either
one of them will, by reason of the
prescripts of their religion or the religion of either one of them,
not be free to remarry unless
the marriage is also dissolved in
accordance with such prescripts or unless a barrier to the remarriage
of the spouse concerned
is removed, the court may refuse to grant a
decree of divorce unless the court is satisfied that the spouse
within whose power
it is to have the marriage so dissolved or the
said barrier so removed, has taken all the necessary steps to have
the marriage
so dissolved or the barrier to the remarriage of the
other spouse removed or the court may make any other order that it
finds just.’
[50] By virtue of this section, the
court is vested with a discretion as to whether it should order that
the dissolution of the
civil marriage be subject to a compliance with
a religious or cultural practice or belief of the parties.
[51] The plaintiff contended that
Section 5A
was not applicable to their marriage and that the
defendant was relying on a misinterpretation of their Christian
beliefs and practice,
as the section was only applicable to religions
which prescribed specific procedures in the dissolution of a marriage
entered into
in accordance with that religion. As no such practice or
procedure was prescribed in respect of their religious marriage, the
court
ought not to order him to appear before any Church tribunal. He
had not followed any such practice when he divorced Diana.
[52] In response the defendant alleged
that the plaintiff had himself previously relied on the existence of
a Church tribunal to
settle disputes which in his view ought not to
be adjudicated by a court of law. When questioned why she was then
relying on the
court instead of the Church as the appropriate forum
in respect of the disputes based on their religious beliefs, the
defendant
stated that it was because the plaintiff had refused to
appear before any Church tribunal and she seeks an order in terms of
Section 5A
to compel him to attend such a hearing. In closing she
submitted that if no adultery had been committed by the plaintiff at
the
time when he ‘left the marriage’ and she had not
committed adultery, then the parties could not divorce. The court
ought therefore not order a decree of divorce; alternatively it
should order the plaintiff to attend a Church tribunal.
[53] The
Divorce Amendment Act No 95
of 1996
was passed to remove the anomalies created by the
discrimination between the civil marriages or legal marriages and
marriages conducted
in accordance with the religious beliefs of the
parties.
[54] The litigants herein subscribe to
the same church and accordingly should share the same religious
beliefs and practices. However
the court was faced with contradictory
submission by the parties in respect of the applicability of
Section
5A
to their Christian marriage and the existence of a religious
impediment to the dissolution of their marriage.
[55] Nevertheless it was apparent that
the defendant was only relying on
Section 5A
in order to compel the
plaintiff to attend a church tribunal. From the commencement of the
trial she persisted that according to
the religious prescripts of
their church, her marriage to the plaintiff was putative because he
could not marry her as his marriage
to Diana could only have been
dissolved on the basis of Diana’s adultery. But once he
testified under oath that his marriage
to Diana had ended because of
her adultery, the defendant was satisfied that there was no religious
impediment to her marriage
to the plaintiff and that her marriage was
sanctioned by their Church. Yet there was no hearing or appearance
before a church tribunal
as she now contends that the plaintiff must
attend or be ordered to by this court exercising its discretion in
terms of
Section 5A.
[56] This in my view establishes that
there is no prescribed religious procedure which lies to be enforced
in terms of
Section 5A
in accordance with the Christian prescripts
subscribed to by the parties, either concomitantly with or before a
decree of divorce
in respect of the civil marriage may be ordered.
[57] I am therefore satisfied that
there is no bar contemplated by
Section 5A
to the granting of a
decree of divorce on the grounds of irretrievable breakdown.
Case No 4803
[58] Although this action was
instituted by Anthea Labuschagne I shall continue to refer to the
parties as they have been previously
in this judgment for the
purposes of consistency.
[59] This is an action by the
defendant for the recovery of monies allegedly loaned and advanced by
her to the plaintiff in terms
of an oral agreement of loan (‘the
agreement’) concluded between the parties at the beginning of
February 2004 in Gauteng.
The defendant alleges that the material
express alternatively tacit alternatively implied terms of the loan
were that :
she would make monthly payments to
and behalf of the plaintiff to discharge business expenses incurred
by him;
the amount paid would vary from month
to month and on demand from the plaintiff;
the amounts loaned as aforesaid would
be repaid when finance became available from the plaintiff’s
business ventures, alternatively
on demand.
[60] Prior to the institution of the
divorce action by the plaintiff the parties agreed in writing on 21
February 2007, 16 March
2007 and 17 March 2007 that the debt would be
calculated and settled in a consent order in terms of which the
parties at that time
proposed to finalise their divorce. However the
consent order was not finalized and the loan was not liquidated, and
remains due
owing and payable, as despite demand the plaintiff has
refused/failed/neglected to pay the loan.
[61] According to a schedule compiled
by the defendant, the loan as advanced from the beginning of February
2004 to the end of November
2006 is the sum of R144 832.23 (one
hundred and forty four thousand eight hundred and thirty two rand and
twenty three cents).
The defendant relies further on a ‘Demand’
dated 26 March 2007 in which she demands payment of the aforesaid sum
from
the plaintiff within seven days of the date thereof.
[62] In defending the action the
plaintiff denies that an oral agreement of loan was entered into by
the parties or that a written
agreement was subsequently entered
into. He avers that this action should be considered in the light of
the plea in the divorce
and the action instituted by the defendant
against Port Sail CC under case number 4804/2007.
[63] The parties agreed that the
following pleadings were before the court in respect of this matter:
Summons as amended dated 14 September
2007
Annexure A demand dated 26 March 2007
Annexure B Loan account for the years
2004 – 2006
Plea dated 10 October 2007
The parties also agreed that they
could refer to the documents in the exhibits before court.
[64] The defendant testified that she
had moved to Gauteng to live with the plaintiff in December 2002 in a
house which he had leased.
He was employed until July 2003. For the
next three months until about October 2003 he received a payment in
lieu of notice of
R15 000 per month. Thereafter the plaintiff
concentrated on the financial planning services he offered on the
internet. He
charged R470 an hour for consultations he held, and
debited a one percent (1%) a raising fee on successful loan
applications but
the business did not generate a sufficient income.
[65] The defendant raised R22 000
via an access bond on the property she owned in Hillcrest and they
utilized this money between
November 2003 and February 2004. In
February 2004, the plaintiff was considering an offer from another
company and they decided
to extend their stay in Gauteng although
they had decided to relocate to Richards Bay and commence a charter
business.
[66] Although the plaintiff was still
operating his financial planning service, he had no income. The
parties then entered into
oral loan agreement in terms of which it
was agreed that the plaintiff would calculate monthly what he needed
to meet his commitments
for the rent, cellphone and other business
outgoings and furnish the defendant with the sum of money he needed;
she would then
pay the money into his bank account. The defendant
confirmed that the payments she made in terms of this loan agreement
were set
out in the schedule marked ‘Annexure B’. She was
able to advance these loans as she had received R1.075 million from
the proceeds of the sale of her Hillcrest house. She purchased a
house in Mtunzini for R628 000 but sold it and bought a house
in
Richards Bay as the plaintiff’s charter business was in
Richards Bay.
[67] The commencement of the charter
business was delayed until December 2005. The boat only arrived in
March 2005, and from July
2004 until March 2005 they continued to
utilise her money from the proceeds of the sale her property. From 1
April 2005 she worked
as an estate agent and earned commission
intermittently. At this stage the plaintiff required funds to refit
the yacht but she
was unable to assist him. He then took a loan of
R149 000 from his mother. In December 2005 the charter business
generated
income of about R32 000 but as the business was not
established the defendant continued to work during 2006 and loaned
the
plaintiff a further R26 024 on the same basis.
[68] The relationship between the
parties ended on 14 September 2006. In February 2007 she discovered
that he was in another relationship.
They decided to enter into a
settlement agreement which would encompass the payment of the monies
owed to her in terms of the loan
and other sums allegedly due to her
by the plaintiff. But the defendant was not satisfied with the sums
of money offered in settlement
by the plaintiff and no consent order
or settlement agreement was finalized.
[69] The plaintiff does not deny that
the defendant made the payments as set out in the schedule. But he
denies that the payments
were effected in terms of an agreement of
loan between the parties and that the sum claimed is payable to the
defendant. He alleges
that she made the payments as part of the
reciprocal duty of care between the parties. He contended that he
would never have entered
into an oral agreement with the defendant as
she had an erratic memory; further with his legal training and
financial expertise,
he would never enter into an oral agreement in
respect of a sum in excess of R10 000. He subsequently conceded
that he had
however entered into 2 oral loan agreements with the
defendant when his own financial resources were low and he was unable
to make
unexpected payments in respect of the transport and storage
of his yacht. He contended that these were the loans he had referred
to when he had acknowledged that he owed the defendant money, and he
had not acknowledged that he was owing the defendant money
in terms
of an oral loan agreement.
[70] The issue for determination is
whether the defendant has discharged the onus on her to prove on a
balance of probabilities
that the oral loan agreement on terms as
alleged by her was entered into by the parties.
[71] In discharge of the onus, the
defendant testified in a detailed and credible manner and presented
written documents and letters
to support her testimony. Her evidence
was largely unchallenged and was not undermined in crossexamination.
The court was satisfied
that she had the financial resources from the
sale of her properties and the commission she earned to advance the
loans as required
by the plaintiff. Within the time frames furnished
by the defendant, the plaintiff was not in regular employment or in
receipt
of a regular income and therefore required money to meet his
lease obligations and to operate his business which was not
generating
a viable income. After the parties relocated from Gauteng
to Kwazulu-Natal, they had to rely on her financial resources as the
plaintiff’s charter business only commenced at the end of
December 2005.
The evidence of the defendant provides
a credible factual matrix for the contention that the parties had
entered into a loan agreement
to assist the plaintiff with his
financial constraints.
[72] The defendant effectively refuted
the plaintiff’s allegation that he would never enter into an
oral agreement in respect
of monies over R10 000 and
particularly not with the defendant by proving that he had in fact
done so by referring to a specific
oral agreement in respect of a
loan he took from her for the yacht; this compelled the plaintiff to
admit that despite his denials
he had entered into not one but two
oral loan agreements with the defendant.
[73] The following excerpts from
correspondence between the parties in Exhibit C Part A also support
the defendant’s allegations
:
Page 68 :email dated 13 February 2007,
the plaintiff wrote :
‘
Once you have figures on what I
owe you, we can finalise an agreement in full and final settlement of
all the financial issues between
us.’
Page 89 : email dated 21 February
2007, the defendant states :
‘
I see that if the divorce
settlement agreement is in place as agreed, by you paying me back the
money you owe me as well as Port
Sail CC, then the issues should be
settled quickly’.
Page 69 : email from plaintiff :
‘
I will go through my bank
statements and try and identify the loans you speak about. Better
still. Itemise them or give me some
figure so that I can sign an
agreement for Wagtail and another to pay the loans and then we can
use that as an agreement for divorce’.
[74] These excerpts are consistent
with the defendant’s testimony that she extracted the
information in Annexure B from the
plaintiff’s bank statements
as he had acknowledged he was owing her money and told her to compute
what was owed to her. They
also sustain her denial that the money the
plaintiff had referred to in the correspondence, did not pertain to
the charter business
or loans in respect of the boat as alleged by
the plaintiff. The recovery of monies allegedly due to the defendant
by Port Sail
CC is being pursued under another action.
[75] The defendant’s allegation
that although the parties had decided to divorce, the divorce did not
proceed because the
settlement agreement did not provide
inter
alia
for the repayment of the loan, is also credible in the light
of this action to recover the alleged loan in an action separate from
the divorce.
[76] The defendant also effectively
illustrated by referring to the dates of the demand (26 March 2007)
and the summons (17 April
2007), the fallacy of the plaintiff’s
allegation that the defendant did not demand the money she alleged
that he owed her,
until she received the divorce summons (26 April
2007); and that the court ought therefore to conclude that the loan
was a fabrication
by the defendant.
[77] The plaintiff on the other hand
provided no credible proof or testimony. He retaliated by bluster and
rhetoric which proved
unfounded. He asserted that the defendant was
claiming monies she had utilized in complying with the reciprocal
duty of support
between spouses, but does not explain why such duty
extends to his business operations. His unsupported submission that
the loan
was a fabrication lacked credibility or merit.
In the premises I am satisfied that on
a balance of probabilities, the defendant has proved the existence of
the oral loan agreement
between the parties and that the plaintiff
owes her the money as claimed.
Order :
Case No 4172/2007
1 A decree of divorce dissolving the
marriage subsisting between the parties is ordered.
2 The defendant’s claim in
reconvention is dismissed
Case No 4803
1 Judgment is granted in favour of the
plaintiff (Anthea Marjorie Labuschagne) against the defendant (Izak
Hermanus Labuschagne)
for :
1.1 payment of the sum of R144 832.23
1.2 interest thereon at the rate of
15.5% per annum a tempora mora to date of final payment
1.3 payment of disbursements in the
sum of R263.80
_______________
Murugasen J
Plaintiff: In Person
Defendant:
In Person