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[2008] ZAWCHC 121
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Mills v Mills (13128/2006) [2008] ZAWCHC 121 (11 December 2008)
IN
THE SUPREME COURT OF SOUTH AFRICA
(
CAPE
OF GOOD HOPE PROVINCIAL DIVISION
)
CASE
NUMBER
:
13128/2006
DATE
:
11
DECEMBER 2008
In
the matter between:
JANE
THELMA MILLS
PLAINTIFF
and
WILLIAM
IGNATHEUS MILLS
DEFENDANT
JUDGMENT
THRING,
J
:
The
plaintiff's claim against the defendant in this matter is in the form
of a partition suit or
actio
communi dividundo.
They
are the joint owners in equal undivided shares of certain immovable
property in Durbanville to which I shall refer as "the
property". She claims in her particulars of claim:
"(a)
An order that the joint ownership of plaintiff and defendant in the
immovable property situated at 8 Blue Crane Street,
Goedemoed,
Durbanville, described as Erf 4667, Durbanville, be terminated;
(b)
An
order that plaintiff's half share in the immovable property be
transferred to defendant and registered in defendant's name
against
payment by defendant to plaintiff of a sum equal to half the fair
and reasonable market value of the immovable property;
(c)
Alternatively to paragraph (b) above, that this Honourable Court
shall determine a just and equitable method of terminating
the joint
ownership between the parties'
(d)
Costs of suit;
(e)
Further and/or alternative relief."
In
paragraph 6 of her particulars of claim she avers that:
"Subdivision
of the immovable property is impracticable and plaintiff pleads that
it is just and equitable that her half
share in the immovable
property be transferred to defendant and registered in his name,
against payment by defendant to plaintiff
of a sum equal to half the
fair and reasonable market value of the immovable property."
The
defendant admits in his plea that it would be impracticable to
subdivide the property, but denies the rest of the allegations
in
paragraph 6 of the plaintiff's particulars of claim. All the other
allegations made by the plaintiff in her particulars of
claim are
admitted by the defendant in his plea.
The
defendant has a claim in reconvention. He avers that during or about
1997 the parties concluded an oral or, alternatively,
tacit
agreement with each other in terms of which:
(a) The
property would be registered in their joint names;
(b) The
defendant would provide the capital with regard to the property or
would finance its purchase, and would make disbursements
in respect
of the property from time to time, including the bond repayments,
the bank administration costs, the bond interest
payments, the
rates and taxes, the maintenance costs and the cost of improvements;
(c) The
plaintiff would pay to the defendant on demand one half of all such
disbursements.
This
is denied by the plaintiff. The defendant goes on to allege that he
made such disbursements, totalling R745 050,20. This
amount was
reduced during the trial to R741 316,45 and still later to R654
155,76. The plaintiff admits that the defendant made
certain
payments in respect of the property, but denies that they amounted
to any of these sums. She admits that she did not
contribute to any
of these disbursements.
It
has been agreed that the present market value of the property is R1
million. The balance presently owing under the mortgage
bond is
agreed to be R121 093,86. The purchase price of the property when it
was acquired in August, 1997 was R183 200.
The
plaintiff and the defendant both gave evidence, but no other
witnesses were called.
The
factual disputes in this matter are legion, but those which are
relevant are fortunately relatively few. Before dealing with
them, I
propose to set out what is common cause or not in dispute between
the parties. It is the following:
1.
The parties were married to each other out of community of
property, and with exclusion of the accrual system, in 1990.
On
the 12
th
October, 2006 their marriage was
dissolved
by order of this Court. A consent paper which they had entered into
was incorporated into the divorce order, but for
some reason the
property was not dealt with or even mentioned in the consent paper.
2. The
property was registered in the joint names of the parties on the 1
st
October, 1997. At the same time a mortgage bond securing their joint
indebtedness to a bank in the sum of R250 000 was registered
over
the property, but it seems that only R183 000 of this amount was
actually borrowed.
3. From
late 1997 until September or October, 2004, the parties lived
together on the property as their matrimonial home, together
with
their minor daughter. Then the plaintiff left the property and she
has not lived there since.
When
the property was purchased in 1997 the defendant paid the sum of
R19 104,63 as a deposit on the purchase price and in respect
of a
pro
rata
payment
of rates. From 1997 to date, the defendant has made payments of
capital and interest on the mortgage bond, amounting
in all to the
sum of R288 672,71.
The
plaintiff made no contribution to any of these disbursements.
The
present market value of the property, as I have said, is R1 million
and the balance presently owing under the bond is R121
093,86.
The
only relevant factual issues on which evidence was led are:
(A) The
existence or otherwise of the agreement which is relied upon by the
defendant, and, if it existed, the terms thereof
and,
(B) The
amount disbursed by the defendant from time to time on:
(i)
rates
and taxes in respect of the property.
(ii)
maintenance
and improvement of the property.
As
to issue (A) above, the alleged agreement, the plaintiff, in her
evidence, denied that she and the defendant had at any time
concluded such an agreement. She also denied that the defendant had
ever asked her to pay anything to him pursuant to such an
agreement.
She also testified that the defendant was well aware that she was
quite unable to pay one half of the amounts involved
out of her
meagre income and resources. She says that as she saw it, the
defendant agreed to have the property registered in
their joint
names as a mark of his love for and commitment to her, and to
provide her with some financial security. There was
never any
agreement, she says, that she would contribute anything to the
purchase price of the property or to the bond repayments
or to the
other disbursements which are claimed by the defendant.
Although
there are certain weaknesses in the plaintiff's evidence, one of
which being her over-readiness to accuse the defendant
of lying, the
plaintiff made a fairly good impression on me as a witness. She was
consistent in her evidence, was unshaken in
cross-examination and
was not evasive. Where necessary she made concessions in the
defendant's favour. She is an intelligent
person, with a good memory
for detail. Making due allowance for her obviously strong antipathy
for the defendant, I found her
to be a generally reliable and
credible witness.
The
same cannot be said for the defendant. Of his type, he was one of
the worst witnesses I have ever seen. He is a teller of
tall tales,
some taller than others. In the witness box he was unbelievably
garrulous and, even worse, evasive.
Time
and time again during his evidence he shied away from difficult
questions, bolting uncontrollably in almost any irrelevant
direction, as long as it was away from the question which he had
been asked, in order to distance himself, with somewhat desperate
glibness on occasion, from inconvenient facts. He was argumentative,
sententious and arrogant. His attempts, when pressed to
explain
glaring improbabilities in his evidence, were sometimes almost
ludicrous and almost invariably unconvincing. Repeatedly
during his
evidence he could be observed trimming his sails to whatever wind he
perceived might be blowing, or might be about
to blow in the witness
box. His evidence crawls with contradictions and inconsistencies.
When driven into a corner he did not
hesitate, in a transparently
dishonest manner, for example, to place the blame for a large number
of missing documents on the
plaintiff and/or on his own attorneys. I
find that the defendant's evidence is really not worthy of very much
credence. Wherever
his evidence differs from that of the plaintiff,
I reject it as false and prefer hers.
It
is common cause that on the issue of the alleged agreement, the
defendant bears the
onus.
I
have no hesitation in finding, on the basis of my credibility
findings, that the defendant has failed to discharge that
onus.
Moreover,
his version on this issue seems to me to be most improbable in the
circumstances and is inconsistent with his subsequent
failure to
take any steps to enforce the alleged agreement, even after the
plaintiff had left him in 2004. I conclude that it
has not been
established by the defendant on a balance of probabilities that such
an agreement was ever concluded between the
parties.
Turning
next to issue (B)(i) above, the amount expended by the defendant on
rates and taxes in respect of the property. On his
behalf a
statement, apparently emanating from the relevant local authority,
was produced, which reflects two payments totalling
R57 489,68. The
accuracy of this information was not challenged in
cross-examination, and the plaintiff conceded in her evidence
that
it was "more or less correct". I conclude in the
circumstances that the defendant has succeeded in establishing,
on a
balance of probabilities, that these payments were indeed made by
him as he alleges.
Issue
(B)(ii) above relates to the amounts expended by the defendant from
time to time on the maintenance and improvement of the
property. The
plaintiff concedes that the defendant made certain disbursements in
this regard. It seems that additions and alterations
were made to
the house, which had the effect of extending it considerably.
Repairs and maintenance were also carried out. The
plaintiff paid
for none of this. It was all paid for out of the defendant's
pocket. The value of the property has increased
more than fivefold
from the R183 200 which was paid for it in August, 1997, when it was
acquired by the parties, to its present
value of R1 million. No
doubt this increase is largely attributable to the rise in the
property market which has taken place
over the last ten years, but
it has not been suggested that part at least of the increase in
value is not due to the maintenance
and improvements carried out on
the property by the defendant over the years.
The
plaintiff says that she kept a book in which she recorded the
amounts spent on maintenance and improvements between September,
1997 and March, 1998. This, she says, was the only period during
which such work was done until she left the defendant in 2004.
She
says that the total amount spent as recorded by her in this book,
amounted to approximately R98 000. She left the book behind
when she
left the house, she says. It was not produced by the defendant in
evidence. I accept the plaintiff's evidence in this
regard.
On
the strength of her evidence I find that the defendant has proved
that he spent approximately R98 000 on useful maintenance
and
improvements to the property during the relevant period. I am also
prepared to accept in his favour that the effect of this
work was to
add value to the property in an approximately commensurate amount.
As for the balance allegedly disbursed by the
defendant, there is
really only his own uncorroborated evidence which in my view is
worthy, as I have said, of very little credence
for the reasons
which I have mentioned. On this issue, also, the
onus
rests
on the defendant. In my view he has failed to discharge it. The
documents on which he seeks to rely in this regard are largely
illegible or unsatisfactory, being in many instances mere copies of
quotations for work and/or materials issued by various suppliers
and
contractors. None of them have been called as witnesses. None of
these documents have been
properly
proved.
Invoices
are few and far between. In some cases the defendant had to concede
in cross-examination that some of the documents related
to other
properties and were of no relevance to the present dispute. No paid
cheques were produced. The defendant's excuse was
that "all"
his documents had been stolen from him by the plaintiff and
destroyed by her. This rings feebly hollow and
I reject it as false.
When challenged on payments which he said had been made by him in
cash, he repeatedly averred that evidence
of such payments could be
found in his bank statements, yet none were produced in evidence.
Moreover,
many of the documents relied on by the defendant, had been tampered
with in his own handwriting. In effect he asked
the Court simply to
take him largely at his word in finding that he had made the
numerous alleged disbursements concerned. I
am not prepared to do
that for the reasons which I have mentioned relating to his
credibility. I conclude that the sum total
of the defendant's
disbursements in respect of maintenance of and improvements to the
property amounted to R98 000 and that the
effect thereof was to
increase its market value in a commensurate amount.
To
sum up so far, I find that the alleged agreement relied on by the
defendant has not been proved; that the defendant made payments
totalling the sum or R57 489,68 in respect of rates and taxes on the
property and totalling R98 000 in respect of maintenance
of and
improvements to the property, which latter payments had the effect
of increasing the market value of the property in a
commensurate
amount. So much for the facts.
As
long ago as 1884
Lord
De Villiers, C J
laid down one of the basic principals applicable in an
actio
communi dlvidundo
as
follows in
Dickson
v Stagq
,
[1884] (3) SC 115
at 116:
"It
is quite true that under the ordinary
law
one of
two
or more co-proprietors is entitled
to
claim a
partition
of the land, but that rule is
subject
to
exceptions,
one of those exceptions
being
that
where it was impracticable or inequitable to allow such a
partition, the Court would in such a case make such an order as the
justice of the equity of the case might require."
That
dictum was quoted with approval in the Appellate Division by
de
Wet, C J
in
Estate
Rother v Estate Sandiq
,
1943 AD 47
at 53, where the learned Chief Justice added:
"The
discretion of the Court is a wide one..."
In
ex
parte
Sewpaul
& Another: in re v Jumanee & Others
.
1947(3) SA 299 (DCLD)
Henochsberq.
A J
as he then was, went further. At 301 to 302 he said the following:
"There
is no doubt that a co-owner of immovable property cannot be
compelled to remain such against his will. Failing in
amicable
agreement he is entitled to a partition but if a partition would
lead to loss or injustice, some other form of relief
may be
substituted.
Scheffermann
& Others v Davies N.O.
(1944, NPD 20).
In partition proceedings the Court is bound to
consider the equities of the case,
Motala
v Estate Lockhat & Another
(1945, NPD 351).
Where it is impracticable or inequitable to allow
a partition, the Court will make such an order as justice or the
equities
of the case may require. The discretion of the Court is a
wide one.
Estate
Rother v Estate Sandiq
(1943 AD 47).
"
See,
also,
Bedessi
v Estcort Rural Licensing Board & Others
,
1970(3) SA 211 (N) at 214 C to E and v
an
der Merwe, "Sakereg"
,
2
nd
Edition, 386 to 390. In
Robson
v Theron
,
1978(1) SA 841 (AD),
Joubert.
J A
spoke at 855 E of a Court's power in exercising its equitable
discretion to:
"...award
the joint property to one of the co-owners
provided that he
compensates the others "
At
857 C the learned Judge of Appeal said of the
actio
communi dividundo:
"This
action may also be used to claim as ancillary relief payment of
praestationes
personates
relating
to profits enjoyed or expenses incurred in connection with the joint
property."
It
is clear from these authorities that where, as here, it is accepted
that it is impracticable to divide the property physically
between
the parties, the Court must make such order "as the justice or
the equity of the case might require" (
Estate
Rother v Estate Sandig, supra,
loc.
cit
.).
Indeed,
this is in essence what the plaintiff seeks in paragraph 6 of her
particulars of claim and what the defendant asks for
in paragraph 14
of his claim in reconvention. It is agreed to he is to acquire the
plaintiff's undivided half share in the property.
What is in dispute
is the amount of compensation, if any, which he must pay to her in
respect thereof.
In
my view the plaintiff's principal prayer in this regard, prayer (b)
of her particulars of claim, which I have quoted above,
i.e.
transfer of her undivided half share in the property to the
defendant against payment to her of one half of the present
market
value of the property, that is to say the sum of R500 000, would not
accord with either the justice or the equity of the
case. Such an
order might be appropriate in a case where none of the co-owners of
a particular property had contributed anything
to its acquisition,
upkeep or improvement, or where all the co-owners had contributed
equally, but that is clearly not the case
here. On her own
admission, the plaintiff has at no time contributed anything to the
acquisition, maintenance or improvement
of the property, other than
to clean the house and tend the garden as a housewife; and no
attempt was made in the evidence to
put a monetary value on her
labours in that regard. On the other hand, on what is partly
common cause and partly on the basis
of my findings, the defendant
has made and will have to make the following useful disbursements
with respect to the acquisition,
maintenance and improvement of the
property: deposit and
pro
rata
rates:
R19 104,63; capital and interest due under the mortgage bond to
date: R288 672,71; rates and taxes: R57 489,68; maintenance
of and
improvement to the property R98 000; balance owing on the bond: R121
093,86; total: R584 361,06.
In
my judgment the justice and equity of the case require one half of
the above aggregate sum to be deducted from the sum representing
one
half of the present market value of the property before the latter
sum is paid over to the plaintiff by the defendant. On
this basis,
the plaintiff is entitled to be paid the sum of R207 819,47, being
R500 000 less R292 180,53.
As
for costs, the plaintiff's claim in convention has been in substance
successful, whilst the defendant's claim in reconvention
has not.
That being so, the plaintiff must be awarded her costs, both in
convention and in reconvention.
In
the result, I make the following order:
1.
The parties' joint ownership of the immovable property situated
at 8 Blue Crane Street, Goedemoed, Durbanville, described
as Erf
4667, Durbanville, is terminated.
2.
The
plaintiff is ordered to do all things and to sign all documents as
may be necessary to effect transfer into the defendant's
name of her
undivided half share in the said property against payment to her by
the defendant of the sum of R207 819,47.
3.
The
costs of effecting the aforesaid transfer shall be borne by the
parties equally.
4. Subject
to the above, the defendant's claim in reconvention is dismissed.
5. The
defendant is ordered to pay the plaintiff's costs, both in
convention and in reconvention.
THRING, J