De Filippo v Micillo (Reasons) (11709/2017) [2024] ZAWCHC 289 (23 September 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy



In the High Court of South Africa
(Western Cape Division, Cape Town)

Case no.: 11709/2017

In the matter between:

MANFREDI DE FILIPPO
(substituted for GIANCARLO DE FILIPPO) Plaintiff

and

ALESSANDRA MICILLO Defendant


REASONS DELIVERED ON 23 SEPTEMBER 2024
Delivered electronically via email


VAN ZYL AJ:

Introduction

1. This action involves a dispute about the ownership of two immovable
properties in Cape Town. The plaintiff has been substituted1 for the erstwhile plaintiff,
Mr Giancarlo de Filippo (his father,2 referred to as “Giancarlo”), who passed away on
9 August 2018.

2. On 2 September 2024 I granted an order in the following terms:

1. The defendant shall pay to the plaintiff the amount of R12 181 781,48.

2. The defendant shall pay interest on the aforesaid sum at the legally
prescribed rate, a tempore morae.

3. The defendant is directed to do all things necessary to enable the
plaintiff to sell the immovable property sit uated at 1 [...] K[...] C[...] Road,
Constantia, Cape Town.

4. The Sheriff of the High Court is authorized and directed to comply on
the defendant’s behalf with the order in paragraph 3 above, in the event of the
defendant failing to do so.

5. The plaintiff is r eleased from having to provide security for the
defendant’s costs and, to the extent necessary, Webber Wentzel Attorneys
are released from the bond of security in the defendant’s favour dated 8
December 2017

6. The entire amount of the proceeds of the sale o f the immovable
property situated at [...] B[...] Avenue, Constantia, Cape Town, currently held

1 Under Rule 15(3) of the Uniform Rules of Court.
2 The current plaintiff is Giancarlo’s sole heir.

in the trust account of Bowman Gilfillan Inc., are to be paid forthwith into the
trust account of Webber Wentzel Attorneys.

7. The defendant shall pay the plaintiff ’s costs of suit on the scale as
between attorney and client.

3. The order was granted after hearing the plaintiff’s evidence-in-chief on 31 July
2024 and in the absence of the defendant, who was in default of appearance at the
resumption of the trial on 2 September 2024.

4. Seven affidavits deposed to by Giancarlo over the years leading up to the
hearing of the a ction for purposes of inter alia an anti -dissipation application, the
defendant’s rescission and variation applications, as well as two contempt
applications, were admitted as evidence for the purposes of the trial.3

5. These are the reasons for the grant of the order. In what follows, I shall
discuss the merits of the action first, and thereafter deal with the circumstances
surrounding the defendant’s default.

Background

6. Giancarlo and the defendant, both Italian citizens, had a romantic relationship.
They lived together from February 2009 to November 2014, when Giancarlo
terminated the relationship.

7. While the parties were still together , two immovable properties were
purchased in Cape Town, namely 1 [...] C[...] Road, Constantia (“K[...] C[...]”) and [...]
B[...] Avenue, Contantia (“ B[...]”). It is common cause that t he purchase of both
properties was funded Giancarlo, and acquired in the defendant’s name . I shall

3 By court order 16 June 2019, in the light of Giancarlo’s death in August 2018.

return to the reasons for this arrangement.

8. B[...] was sold after the termination of the parties’ relationship. The defendant
retained the proceeds of the sale. She also continued to reside at K [...] C[...] with
Giancarlo’s consent. She is still residing there.4

9. The plaintiff alleges the existence of an oral agreement between the parties to
the effect that Giancarlo had agreed to fund the purchase of the properties to be
registered in the defendant’s name, on condition that they would eventually be sold
and the procee ds paid to Giancarlo. The plaintiff thus seeks an order that the
proceeds of the B[...] property be paid to him, and that the K[...] C[...] property be
sold and the proceeds paid to the plaintiff.

10. The defendant denies the existence of the oral agreement . She contends that
the properties were donated to her.

11. On 25 April 2017 Giancarlo obtained an order 5 (“the anti -dissipation order”)
interdicting the defendant from alienating K [...] C[...], and from disposing of the
proceeds from the sale of B [...], pending the outcome of the action. This was
because the defendant was residing in K [...] C[...], and had retained the proceeds of
the B [...] sale in her own bank accounts. The Court (the Honourable Justice
Baartman presiding) inter alia interdicted the defendant from:

11.1 directly or indirectly dealing in any way with, disposing of or removing
from the Republic of South Africa any of the funds, including present or future
funds, held in any one or more of various enumerated bank accounts on
condition that a monthly amount o f R34 000 -006 could be drawn from one

4 She initially retained occupation initially with Giancarlo’s consent, but the current plaintiff has not
given consent for her to remain there.
5 Under case number 23724/2016.
6 The defendant subsequently brought a so -called variation application inter alia to increase this
amount, which application was refused in May 2018.

such account to provide for her living expenses;

11.2 selling, alienating, encumbering or in any way disposing of K[...] C[...],
pledging, mortgaging or in any way encumbering the property, and in any way
damaging, or causing or allowing damage to be caused to the property.

12. On 8 September 20177 the Court ordered the proceeds of the sale of the B [...]
property to be held in the trust account of Bowman Gilfillan Inc, the defendant's
fourth set of attorneys at the time, pending the finalisation of the action.

13. Various interlocutory skirmishes followed8 before the matter was declared trial
ready during November 2023 and set down for hearing on 12 March 2024. I shall
return to the events leading up to 12 March 2024 and thereafter, which culminated in
the order of 2 September 2024 being granted in the absence of the defendant.

The claim, and the defence

14. The pleadings and the evidence on record indicate the following:

The acquisition of the immovable properties

15. During 2013 9 Giancarlo and the defendant entered into an oral agreement
(“the first agreement”) with the following material terms:

15.1 Giancarlo would buy a house in Cape Town, preferably in Constantia,
to be registered in the defendant’s name.

7 Following an unsuccessful application for the rescission of the anti -dissipation order: unreported
judgement under case number 23724/2016, delivered on 8 September 2017.
8 The details of the various interlocutory applications are set out in five unreported judgments of this
Court, delivered on 8 September 2017, 25 May 2018, 22 February 2022, 11 September 2024, and 16
September 2024 respectively.
9 A year before the end of their relationship.


15.2 The property would be paid for by Giancarlo , and although it would be
acquired in the defendant’s name, it would not be a gift or a donation.

15.3 The parties would enjoy the use of the property during the South
African summer season for a few years, where after it would be sold and the
proceeds of the sale “repatriated” to Giancarlo’s bank account in Europe
where the money to finance the purchase originated from.

15.4 It was a tacit term of the first agreement that , in the event of the
termination of the parties’ relationship, the property would be sold and the
proceeds paid to Giancarlo’s bank account in Europe where the funds to
finance the purchase originated from.

16. On 22 June 2013, pursuant to the first agreement, the defendant entered into
an agreement for the purchase of the B[...] property, at a purchase price of
R11,5 million. Giancarlo discharged his obligation under the first agreement by
transferring sufficient funds from his bank account in Europe to pay the purchase
price.

17. Following registration of B[...] into the defendant’s name on 2 December 2013,
Giancarlo decided to sell B[...] because renovating it would take too long, and be too
costly.

18. Between 2 December 2013 and 9 March 2014, the parties entered into a
further oral agreement (“the second agreement”) with the same material terms as the
first agreement. It was also a tacit term of the second agreement that in the event of
the termination of the parties’ relationship the new property would be sold and the
proceeds paid to Giancarlo’s bank account in Europe.


19. On 10 March 2014 , pursuant to the second agreement, the defendant
concluded an agreement for the purchase of the K[...] C[...] property, at a purchase
price of R14 million. Giancarlo discharged his obligation under the second
agreement by transferring sufficient funds from his overseas bank account to pay the
purchase price , and K[...] C[...] was registered in the defendant’s name on 6 May
2014.

20. Two considerations led to Giancarlo’s decision to purchase immovable
property in South Africa: 10 The fir st consideration was that t he defendant had
previously lived in South Africa for about five years before the commencement of the
parties’ relationship, and frequently expressed the wish to return to South Africa, if
even for a few months a year during the European winter season. This was an
agreeable proposition to Giancarlo who started to investigate the real estate market
in Cape Town and, in particular, in Constantia.

21. The second consideration was that, t owards the end of 2010 , the Italian
Commission of Control of the Italian Stock Exchange ( “CONSOB”) started
investigating Giancarlo’s financial affairs for possible insider trading and buying and
selling activities in respect of a listed Italian company. This was followed in 2011 by a
formal charge by the prosecuting authority in Milan. To protect his assets, or at least
some of them, against possible judicial sequestration, 11 he decided to buy property
in South Africa, the purchase of which he would finance, but to register it in the
defendant’s name.

22. B[...] was sold for a purchase price of R12,6 million on 20 July 2015.

23. As of 27 July 2015 , the amount expended by Giancarlo in respect of various

10 Giancarlo’s son was able to give oral evidence as to his father’s mindset in deciding to purchase
the properties.
11 Which eventually did not happen.

contracts for the renovation of K[...] C[...] amounted to R5 457 829,13.12

The dispute between the parties

24. It is common cause that the defendant caused the net proceeds of the B[...]
sale in an amount of R12 181 781,48 to be paid to herself into two b ank accounts,
namely R1 million thereof into her Société Générale account n umber 0[...], and t he
balance into her First National Bank account number 6[...].

25. The plaintiff alleges that the retention of the proceeds was in breach of the
provisions of the first agreement. As a result of the defendant’s breach of contract,
Giancarlo suffered damages in an amount of R12 181 781,48, and the plaintiff claims
payment of that amount, plus interest.

26. In breach of the second agreement, the defendant continues to occupy K[...]
C[...] and claims it to be hers to do with as she pleases, whereas the plaintiff alleges
that the property should be sold and the proceeds paid over to him. The plaintiff
therefore claims an order mandating him to ap point an estate agent to market and
sell the property, obliging the defendant to sign all documents necessary to transfer
the property to a future buyer, and to give instructions for the purchase consideration
to be paid into a bank account designated by h im. Should she fail to do so, the
Sheriff of the High Court should be directed to comply with the order on the
defendant’s behalf.

27. Giancarlo made many attempts to resolve the outstanding matters between
him and the defendant prior to his death. He made various settlement proposals in
relation to the properties, all more than €2 million in value, the most favourable of
which was of the order of €2,4 million in value . None of the proposals was

12 Particulars of how much money Giancarlo transferred to the conveyancers and to the defendant for
onward transfer to them, to whom the transfers were made, when they took place, and so forth, are
set out in the founding and replying affidavits in the anti-dissipation application.

acceptable to the defendant.

28. The defendant denies that the p urchases were made pursuant to any
agreement between her and Giancarlo. She avers that she became the lawful owner
of the properties, and that the transfers made by Giancarlo from his bank account in
Europe were donations to her. That being the case , she was entitled to the proceeds
of the sale of B[...]; and she is the lawful owner of K[...] C[...] and has no obligation to
sell the property.

29. The defendant avers further that it was a joint decision to sell B[...]. Giancarlo,
in consultation with her, had given instructions for B[...] to be put up for sale, decided
which estate agent would market B[...], what the asking price would be , and which
offer to accept.

30. Most of this information appears from the pleadings and the affidavits
admitted into the records. The current plaintiff gave oral evidence on the aspects that
he was aware given his conversations with his father over the years.

31. The trial was postponed after the plaintiff’s evidence -in-chief on 31 July 2024,
and resumed on 2 September 2024. On that day, the defendant did not appear, and
the plaintiff was not cross -examined. No further oral evidence was led on behalf of
either party.

The relevant legal principles

A written contract is not essential

32. The agreements on which the plaintiff relies are not in writing.


33. In Goldblatt v Fremantle 13 the Court stated that : “Subject to certain
exceptions, mostly statutory, any contract may be verbally entered into; writing is not
essential to contractual validity.”14

34. One of the exceptions requiring writing for the coming into being of a valid
agreement is to be found in section 2(1) of the Alienation of Land Act 68 of 1981
(“the ALA”), which provides as follows:

“No alienation of land after the commencement of this section shall, subject to
the provisions of section 28,15 be of any force or effect unless it is contained in
a deed of alienation signed by the parties thereto or by their agents acting on
their written authority.”

35. Section 2(1) gives rise to the question whether the a greements which the
plaintiff relies upon concern alienation of land which, to be of any force or effect,
requires to be contained in a deed of alienation signed by the parties thereto.

36. The answer to that question is in the negative. As the section invol ves an
alteration of the common law, it must be interpreted strictly.16

37. Section 1 of the A LA defines “alienate”, “in relation to land” , as meaning to
“sell, exchange or donate, irrespective of whether such sale, exchange or donation is
subject to a suspen sive or resolutive condition, and ‘alienation’ has a corresponding
meaning”.

38. On Giancarlo’s version, the agreements between himself and the defendant

13 1920 AD 123 at 128.
14 Not even words are essential, since an acceptance may be inferred from conduct: Timoney & King
v King 1920 AD 133 at 141.
15 The provisions of section 28 are not relevant to present purposes.
16 Du Plessis v Nel 1952 (1) SA 513 (A) at 527E.

did not involve the sale, exchange , or donation of land. 17 On the contrary, they
required the defendant, in defined circumstances, to sell the land that had been
purchased and registered in her name, subsequent to which she would have had to
reimburse Giancarlo. The sale of the land would involve a third party , and that sale
would have to comply wi th the provisions of section 2(1) of the A LA, as the sale of
B[...] did. In fact, the current position as far as B[...] is concerned illustrates the point:
The property was sold to a third party and the plaintiff now claims the proceeds in
accordance with the agreement that Giancarlo and the defendant had concluded.
The upshot of the agreements does not involve an ineffective sale of land but one
that would see the proceeds of valid sales between the registered owner, the
defendant, and a third party, w hich comply with section 2(1) of the A LA, being paid
over to the plaintiff.

39. Dadabhay v Dadabhay and another18 concerned a matter where the appellant
had orally agreed with the first respondent that he would purchase an erf from the
Community Development B oard as her “nominee”. The respondent duly purchased
the erf without ex facie the written agreement purporting to represent the appellant.
The respondent denied concluding a contract with the appellant and pleaded that he
was entitled to ownership of the p roperty having entered into a written agreement
with the Board. The Appellate Division concluded as follows:

“To sum up, in the present matter, on the case pleaded in the appellant’s
particulars of claim, there was an oral agreement that the respondent wo uld
buy an erf from the Board; that he would do so as ‘nominee’ (which, as I have
said, may well have been intended to mean ‘trustee’) for the appellant; that
there is no mention of monetary consideration for his service; and that, when
called upon, he wou ld sign all documents necessary to enable the erf to be
registered in her name. Having regard to the authority cited above, in my view

17 Bradfield Christie’s Law of Contract in South Africa (7ed) at 132 -1333 usefully lists contracts that
have been held to fall outside the definition of the section 2(1) concept of alienation.
18 1981 (3) SA 1039 (AD), concerning the forerunner to section 2(1) of the ALA.

the oral agreement is not hit by s 1(1) of Act 68 of 1957; it is not a contract of
sale or a cession in the nature of a sale.” 19

40. In Mossop v McLaren 20 this Court held that the plaintiff had discharged the
onus of proving an oral agreement which the parties had concluded, prior to the
acquisition of immovable property, in terms of which the defendant undertook to
purchase and acquire the property as nomi nee and trustee for and on behalf of the
plaintiff. In this regard the Court found that: “The Plaintiff’s version that the Defendant
would hold the Durbanville property as nominee and would be obliged to deliver the
said property on demand is, on a conspe ctus of all the evidence in this case, more
plausible and credible than the Defendant’s version.”21

The burden of proof

41. It is trite that the burden of proving the existence of a contract is on the party
who alleges such existence, and thus the plaintiff has to show that the contracts exist
and what their terms are.

42. In Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 22 the Appellate
Division stated the law to be as follows: “Ordinarily, the general rule is that a plaintiff
who sues on a contract must prove his contract, even though this may involve
proving a negative, viz that an additional term alleged by the defendant was not
agreed to by the parties ...”23

43. As indicated, the plaintiff relies on a tacit term of the agreements which would

19 At 1050A-B.
20 Under case number 13020/2005 (unreported).
21 The judgment is not in the court file and Le Grange ADJP’s (the presiding judge) r egistrar was
unable to be of assistance. The quote is from the plaintiff’s heads of argument in the defendant’s
unsuccessful application for leave to appeal.
22 1979 (3) SA 754 (A) at 762G-H.
23 See also D&H Piping Systems (Pty) Ltd v Trans Hex Group Ltd and another 2006 (3) SA 593 (SCA)
at 699G-H.

see the sale of the immovable properties in the event of the termination of the
original parties’ relationship, and the repatriation of the proceeds to Giancarlo’s bank
account in Europe.

44. In Bremer Meulens (Edms) Bpk v Floros 24 the Appellant Division stated the
following: “Insofar as the essentials are concerned, there is no difference between
express and tacit agreements. Indeed the only difference lies in the method of proof,
the former being proved either by evidence of the verbal declarations of the parties
or the production of the written instrument embodying their agreement, the latter by
inference from the conduct of the parties.”

45. A tacit term of a contract, or a term implied from the facts, was described in
Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 25 inter alia as
“an unexpressed provision of the contract which derives from the common int ention
of the parties, as inferred by the Court from the express terms of the contract and the
surrounding circumstances. In supplying such an implied term the Court, in truth,
declares the whole contract entered into by the parties.”

46. This dictum was followed in Scholtz v Scholtz26 as follows:

“[12] Tacit terms, on the other hand, are by definition not to be found through
interpretation of the express terms. They are by definition neither recorded nor
expressly agreed upon by the parties. They often pertain to matters which the
parties did not even consider. They emanate from the common intention of
the parties, as inferred by the court from the express terms of the contract and
the surrounding circumstances (see, for example, Alfred McAlpine & Son (Pty)
Ltd v Transvaal Provincial Administration (1974 (3) SA 506 (A) at 531H).”


24 1966 1 PH A36 (A).
25 1974 (3) SA 506 (A) at 531-532.
26 2012 (5) SA 230 (SCA) at 234I-J.

47. To determine whether a tacit term is to be imported into the contract, the
express terms of the contract must be examined. The question to be asked is
whether, regard being had to the express terms of the contract, there is any room for
importing the alleged implied term. 27 When an examination of the express terms
does not immediately exclude the possibility of imp orting a tacit term, the next
question is what general tests the Court should apply to decide whether the
importation of a tacit term would be appropriate. 28

48. In Buffalo City Metropolitan Municipality v Nurcha Development Finance (Pty)
Ltd and others29 the Supreme Court of Appeal held as follows:

“[16] The test for establishing the intention of the parties to conclude a tacit
contract is now settled. In Butters v Mncora 2012 (4) SA 1 (SCA) …, where a
universal partnership between co -habitees was relied upon, Heher JA said
(para 34):

‘This appeal is about an alleged tacit agreement. As in all such cases
the court searches the evidence for 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
which cannot be reconciled with it. At the end of the exercise, if the
party placing reliance on such an agreeme nt 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. Despite the differ ent formulations of the onus that exists
(see the discussion in Joel Melamed and Hurwitz v Cleveland Estates

27 Pan American World Airways Inc v SA Fire & Accident Insurance Co. Ltd 1965 (3) SA 150 (A) at
175C.
28 See Delfs v Kuehne & Nagel (Pty) Ltd 1990 (1) SA 822 (A) at 827B-828B.
29 2019 (3) SA 379 (SCA) at paras [16]-[21].

(Pty) Ltd; Joel Melamed and Hurwitz v Vorner Investments (Pty) Ltd
1984 (3) SA 155 (A)) … this is the essence of the matter.’

This statement is a m inority judgment but the majority did not take issue with
the principle. It was only the application of the principle that was in dispute.
…
[21] In Butters, Brand JA for the majority, in deciding whether a universal
partnership had been established, held that (para 18):

‘Where the conduct of the parties is capable of more than one
inference, the test for when a tacit universal partnership can be held to
exist is whether it is more probable than not that a tacit agreement has
been reached.’”

The required standard of proof

49. In Govan v Skidmore 30 the Curt, having alluded to the different standards of
proof variously applicable to criminal and civil matters, held that it was “trite law that,
in general, in finding facts and making inferences in a civil case, the Court may go
upon a mere preponderance of pro bability, even although its so doing does not
exclude every reasonable doubt”, so that one may, “by balancing probabilities, select
a conclusion which seems to be the more natural, or plausible, conclusion from
amongst several conceivable ones, even though that conclusion be not the only
reasonable one”.

50. It has been held31 that “plausible” in this context means “acceptable, credible,
suitable”.

51. The onus of proof must be distinguished from the evidentiary burden

30 1952 (1) SA 732 (N) at 734A-B and C-D.
31 Ocean Accident & Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 159C.

(“weerleggingslas”) which, itself, involves at least two discrete concepts, namely a
duty to adduce evidence to combat a prima facie case made by one’s opponent; and
the duty cast upon a litigant, who has to begin, of adducing evidence in order to
escape certain procedural consequences. The evident iary burden is the evidential
burden of combating a prima facie case made by one’s opponent. 32

52. The principles applicable to prima facie inferences apply to civil and criminal
cases but this does not mean that in some cases a party may obtain a verdict
without producing the ordinary degree of proof. The requisite standard must always
be satisfied. However, in considering whether the onus h as been discharged, the
Court is entitled, in appropriate cases, to take a party’s failure to adduce evidence
into account.33 In other words, in civil cases the overriding question is whether the
party who bears the onus has discharged it but the absence of an explanation can
be a circumstance to be taken into account in arriving at a conclusion.34

53. A defendant’s failure to testify justifies a verdict for the plaintiff if there is
enough evidence to enable the Court to conclude that, having regard to the a bsence
of an explanation, the plaintiff’s version is more probable than not. In Marine & Trade
Insurance Co. Ltd v Van der Schyff 35 the Appellate Division held that the plaintiff’s
evidence must be such that, should he decide to close his case, an order o f
absolution from the instance would not be warranted.

The nature of the evidence

54. The rule is that parties present their evidence at trials orally, but the High
Court has the power to give leave for evidence in a trial to be proved by affidavit.
Rule 38(2) provides that a court may at any time, for sufficient reason, order that all

32 South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534
(A) at 548.
33 Terry v Senator Versekeringsmaatskappy Bpk 1984 (1) SA 693 (A) at 699C-F.
34 New Zealand Construction (Pty) Ltd v Carpet Craft 1976 (1) SA 345 (N) at 349.
35 1972 (1) SA 26 (A) at 37.

or any of the evidence to be adduced at any trial be given on affidavit , provided that
where it appears to the Court that any other party reasonably requires the
attendance of a witness for cross -examination, and such witness can be provided,
that witness’s evidence shall not be given on affidavit.

55. Pursuant to this sub -rule the Court granted leave, by agreement between the
parties, that seven affidavits deposed to by Giancarlo be admitted in evidence. It was
fair36 to have done so , given Giancarlo’s death in 2018, and the circumstances to
which I refer further below.

56. According to Erasmus37 the factual allegations in the affidavits stand
unchallenged and no dispute of fact in respect thereof arises if the parties agree that
the deponent will not be cross -examined. In the present matter the parties knew in
advance that they were agreeing to the affidavits being used in evidence without
there being the possibility of cross-examination of Giancarlo.

57. The Courts are reluctant to allow evidence in action proceedings to be
tendered on affidavit when a deponent will not be available for cross -examination, as
this may prejudice the other party . However, in Robinson v Randfontein Estates
Goldmining Co Ltd 38 the Court remarked that the prejudice is not necessarily one -
sided:

“The person who produces on paper the evidence of a witness is, as a rule, a t
a disadvantage, because the Court will pay more attention to the evidence of
witnesses who appear before it, who are examined and cross -examined
before it, than to those witnesses whom it has not had an opportunity of
seeing, and if a question arises as to the credibility of such a witness, or
whether the Court ought to accept his testimony, it would prefer to base its

36 Madibeng Local Municipality v Public Investment Corporation Ltd 2018 (6) SA 55 (SCA) at 61F-H.
37 Superior Court Practice Volume 2 (2ed) at D1 (Rule 38-9).
38 1918 TPD 420 at 422; and see Grant v Grant 1949 (1) SA 22 (C) at 30.

judgment on what it has seen and heard than on testimony about which some
doubt may exist.”

58. In the present matter there is less reason to be concerned about the fact that
the Court must decide the matter also with reference to the evidence on affidavits
deposed to by a person who cannot be cross -examined, because those affidavits
were not deposed to for purposes of the trial . The defendant had occasion to
respond to all of them. The current plaintiff has, moreover, given viva voce evidence
corroborating Giancarlo’s evidence on affidavit , and was available for c ross-
examination by the defendant. The defendant chose not to do so by failing to appear
on the date of the resumption of the trial on 2 September 2024.

59. Part VI of the Civil Proceedings Evidence Act 25 of 1965 contains various
provisions regarding documentary evidence. Section 34 deals w ith the admissibility
of documentary evidence as to the facts in issue. The approach in section 35(1) ,
which deals with the weight to be attached to evidence admissible under Part VI ,
assists this Court in the evaluation of Giancarlo’s evidence on affidavi t. It reads as
follows:

“In estimating the weight, if any, to be attached to a statement admissible as
evidence under this Part, regard shall be had to all the circumstances from
which any inference can reasonably be drawn as to the accuracy or otherwise
of the statement, and in particular to the question whether or not the
statement was made contemporaneously with the occurrence or existence of
the facts stated, and to the question whether or not the person who made the
statement had any incentive to conceal or misrepresent the facts.”

60. In the application proceedings prior to the commencement of the trial in which
the affidavits featured over a number of years, this Court had no reason to doubt
Giancarlo’s credibility.


61. I have mentioned earlier that it wa s fair, in the circumstances, to have the
affidavits admitted as evidence. This is because delays on the defendant’s side in
agreeing to a hearing date prior to Giancarlo’s death were in some part to blame for
the eventual non-availability of his oral evidence.

62. It appears from the application to admit the affidavits in evidence that i n some
of his affidavits Giancarlo mentioned the fact that his health was seriously
impaired.39 On 13 September 2017 his attorneys wrote a letter to the defendant’s
attorneys at the time, in which they referred to the ongoing issues with his health: “In
fact, we intend to approach you in due course as to the possibility to expedite the
trial and/or hearing of the matter, which would be in both parties’ interest, and kindly
request that you also advise whether your client would be amenable to such an
approach and/or arrangement.”

63. On 14 September 2017 the defendant’s attorneys responded as follows: “Our
client is agreeable to the expedited hearing suggested by you.” That letter letter was
written by an attorney who subsequently left the firm, and another attorney from the
same firm took over.

64. The parties became engaged in a n application40 for the variation of the anti -
dissipation order, in which judgment 41 was given in May 2018. On 10 July 2018
Giancarlo’s attorneys again wrote the defendant’s attorneys, stating:

“4. As you are aware, and as is common cause, our client has been
suffering ongoing issues with his health, being our initial reason for suggesting
an expedited trial.

39 The current plaintiff deposed to the founding affidavit in the application to admit Giancarlo’s
affidavits in evidence.
40 Instituted by the defendant.
41 Refusing the application.


5. Further to the above our client’s health condition has deteriorated over
time and we are now in the precarious position of our client’s health h aving
deteriorated to such an extent that it is becoming increasingly difficult for him
to travel. Moreover, our client has commenced a new form of treatment which
will require him to be in Monaco between the months of July and September.

6. As you are awa re, the time period for obtaining a trial date in the
ordinary course is more than a year, which would result in prejudice to our
client for obvious reasons, and would also not be in the best interest of your
client. Our client is therefore desirous of dea ling with this matter in the
shortest time period possible.

7. In the circumstances, and having regard to the in principle agreement
referred to in 2 and 3 above to expedite the trial we kindly request that you
provide us with your formal written consent, so as to enable us to approach
the Judge President to obtain an expedited trial date. In this regard, we intend
to deliver a letter to the Judge President, a copy of which is annexed hereto
marked ‘C’, proposing that the trial be set down on a date between 15 and 22
November 2018.

8. Having regard to the fact that the pleadings have closed, and discovery
has been completed, we submit that the abovementioned dates allow more
than sufficient time for any further trial preparation.”

65. Giancarlo saw this letter before it was sent and noted that although it was
difficult for him to give realistic periods due to his health problems, he was able to
say that tentatively the second half of November 2018 would be a good time for
setting down the trial.


66. On 26 July 201 8 Giancarlo’s attorneys received a call from the defendant’s
attorney, during which the latter advised that he would be involved in trial
proceedings from 19 November 2018 for a few days , and that he would try and
clarify the exact dates and revert. This never happened.

67. Instead, in a letter that was dated 13 July 2018, the defendant’s previous
attorney indicated that he now represented the defendant again and that, although
she was aware of Giancarlo’s ill health, exact details of his current state of health
were unknown to her. He asked to be provided with documentary proof regarding the
state of Giancarlo’s health, stating that a certificate emanating from the institution
providing treatment would carry more weight than a letter from his doctor.42

68. In his view the matter was not trial ready . The defendant intended amending
her plea by the introduction of two further alternative defences , and might call for
further documents. He also suggested that , before applying for an expedited date,
Giancarlo’s attorneys should call a Rule 37 conference to agre e on a timetable
dealing with the various issues.

69. By letter dated 1 August 2018 Giancarlo’s attorneys reminded the defendant’s
attorney that the defendant had previously been agreeable to an expedited hearing ,
and asked whether that was still the case . The defendant’s responded on 10 August
2018, the day after Giancarlo passed away, and although his letter indicated that the
defendant remained agreeable to an expedited date, this would only be the case
provided that the matter was ready and her witnesses available, a statement
followed by a repetition of the unidentified “intention to amend and to obtain further
and better discovery”.

70. The strategy seems to have been to delay the matter in view of Giancarlo’s
illness, presumably because it was assumed that he and the defendant were the

42 This was less than a month before Giancarlo died.

only persons with first -hand knowledge of the agreement between them regarding
the two South African properties. This is particularly evidenced by the contents of
paragraph 3 of the letter which reads as follows: “It is also important to Ms Micillo
that any date chosen will allow for the matter to run its course in one sitting. She
would be unwilling to agree to any date where there would be a danger of the matter
becoming part-heard over the Christmas break.” This signified that there would have
been resistance to, for example, a proposal that Giancarlo’s testimony be given on
an expedited basis and for the remainder of the evidence to be given at a later stage.

71. As it turned out Giancarlo was found by his son to be extreme ly dehydrated
and malnourished and in need of immediate hospitalisation during the week of 30
July to 3 August 2018 and, following his admission to the hospital Centre Princesse
Grace de Monaco on 3 August 2018, he died on 9 August 2018. The defendant’s
attorney was informed of Giancarlo’s death by letter dated 15 August 2018.

72. It appears from a medical certificate on record that, following his
hospitalisation, Giancarlo would not have been able to give evidence before a
commissioner nor by way of video link, and that he was so weakened that it would
also not have been possible for him to depose to another affidavit.

73. In all of these circumstances, the best evidence of Giancarlo’s version has
become his affidavits.

The evidence on behalf of the plaintiff

74. Against the backdrop of the relevant legal principles I now turn to the available
evidence.

The purchase of the properties


75. I have referred to the fact that the defendant and Giancarlo lived together from
15 February 2009 until 19 November 2014 wh en their relationship came to an end.
Since the defendant was significantly younger than Giancarlo, she was concerned
for her financial security in the event of his death and, to allay her fears, he
established a real estate company in Monaco on 2 July 20 09 which purchased an
apartment in a French village called Roquebrune -Cap-Martin, 10 km from Monaco.
Giancarlo provided the funds for the purchase of the apartment in an amount of €1
455 000,00.

76. He and the defendant were the shareholders, with him holding the usufruct
and the defendant the remaining interest, a scheme which would have enabled her
to re-unite the usufruct with the remaining interest in the event of his death and so
become the legal owner of th e company and its very significant asset. This would
mean that, in the event of Giancarlo dying before the defendant during their
relationship, she would have acquired unencumbered ownership of the company and
would have been at liberty to use or dispose of the apartment as she saw fit. In the
event of the termination of their relationship as a result of causes other than his
death, the apartment would still have become the defendant’s sole property

77. The defendant confirmed during oral evidence given on 30 July 2024 that she
had sold the apartment in 2019. She declined to disclose how much it was sold for
and where the proceeds are being held.

78. I have earlier above mentioned the two considerations th at led to Giancarlo’s
decision to purchase immovable property in South Africa . When Giancarlo’s bought
the South African properties, the agreement between him and the defendant w as
simply to enjoy the use thereof during the summer season for a few years, after
which they would sell them and repatriate the proceeds of the sale to her bank
account in Europe and from there to his bank account where the funds originated
from.


79. Giancarlo thus financed the purchases of two properties in Constantia , having
agreed with the defendant that although the assets would be acquired in her name,
they were not to be considered a gift or a donation, but would only be registered in
her name for the reasons already referred to.

80. Giancarlo gave all the required mandates to th e estate agents , including to
buy or sell the properties, and co -signed the purchase agreements as a witness. He
also had a right of signature in respect the defendant’s CFM Monaco bank account,
as well as her account s in Switzerland and with Banca dello S tato. He assisted with
the opening of these accounts , as also the ones in the defendant’s name at F irst
National Bank’s Constantia branch.

81. The defendant never liaised directly with the various people involved in the
acquisition and renovation of the properties , such as real estate agents, lawyers,
conveyancers, architects, project managers, builders, subcontractors , and banks.
Giancarlo did all of this but kept her fully informed of what was going on.

82. Giancarlo and the defendant visited South Africa on six occasions (between
11 April 2013 and 29 October 2014) inter alia to buy B[...] and then to sell it again;
and buy K[...] C[...] and oversee the bulk of the renovations and refurbishing thereof.

83. On 2 0 June 2013 they made an offer of R11,5 million for B[...] which was
signed by the defendant and accepted by the owner. It was transferred into the
defendant’s name on 2 December 2013. Giancarlo conducted all the negotiations
with Mr Eugene Pienaar of Ra wson Properties, attorney CLT Bollo of Biccari Bollo
Mariano Inc., and the valuer, Mr R. Gouveia of Valuetec.

84. Giancarlo paid for the purchase of B[...] by transferring €1 350 000,00 from his
Swiss bank directly to Mr Bollo’s trust account and €100 000, 00 from his Swiss bank

account to the defendant’s Monaco CFM bank account, and from there to Mr Bollo’s
trust account.

85. Giancarlo spent the rest of 2013 instructing his architects in Rome to devise a
preliminary project for the renovation works that he wan ted carried out according to
his preferences and, once this was done, he obtained a quote from Steel Consulting.
Steel Consulting having estimated the cost of the project to be about R10,5 million
and that it would take 18 months to complete, Giancarlo de cided not to continue with
any further alterations but rather to buy a second property which would require less
renovation and less time within which to do it.

86. He searched for another property during January and February 2014 and
finally decided to buy K[...] C[...], to which he was introduced by estate agents Fine &
Country. The defendant, as nominal purchaser, and Giancarlo, as witness, signed an
offer to purchase on 7 March 2014 which was subsequently amended by their
attorney, Mr Arno Watson, who h ad power of attorney to do so, and it was finally
accepted. Transfer was registered on 6 May 2014.

87. K[...] C[...] was purchased for R14 million. To finance this Giancarlo
transferred €300 000,00 from his Swiss bank account to the defendant’s Swiss bank
account from where she transferred it to her FNB Constantia bank account. The
defendant paid the deposit from this, and transferred some of the funds to her FNB
Constantia bank account. Giancarlo also transferred €1 200 000,00 from his Swiss
bank accou nt to the defendant’s Swiss bank account from where she paid R12,6
million for the balance of the K[...] C[...] property purchase price. Further transfers of
R2,8 million, R2,9 million and R900 000,00 were also made from the defendant’s
Swiss account to her FNB Constantia bank account.

88. Their last visit to South Africa together was between 29 October 2014 and 17
November 2014, on which date Giancarlo decided to terminate his relationship with

the defendant, which he did on 19 November 2014.

89. Giancarlo made one last journey to South Africa by himself on 5 May 2015 to
return on 22 May 2015 to assist the defendant, who was alone in Constantia busy
with finalising the renovation work in respect of K[...] C[...].

90. B[...] was finally sold on 20 July 2015 with Mr Watson as the conveyancer. As
indicated, the defendant retained the proceeds.

The evidence emanating from the anti-dissipation application

91. Giancarlo was concerned that the defendant would continue to dissipate his
assets (she had access to his credit card for a substantial period after the end of
their relationship, and was in control of the B[...] proceeds) and that he would not be
able to recover anything even if he were to successfully institute an action for the
recovery thereof. His apprehension was furthered by her refusal to come to any kind
of arrangement with him.

92. He had taken some time to institute legal proceedings mainly because of
efforts to resolve the matter amicably, which involved an exchange of 40 e -mails
between him and the defendant in an attempt to settle the matter between them. The
first proposal was made on 27 July 2015, and the last attempt which he had made to
convince her to settle the matter amic ably, and to which she did not respond, was
made on 1 August 2016.

93. When Giancarlo deposed to the founding affidavit in the anti -dissipation
application, he did not consider it necessary to burden the Court with the flood of
correspondence between the defendant and him which followed upon the
termination of their relationship, but she elected to refer to some of that
correspondence, ostensibly because it supported her claim that he had donated the

properties to her.

94. He therefore referred more extensively t o the background in his replying
affidavit, inter alia to show that his letters to the defendant were mostly generous
settlement offers which almost invariably got rejected, and all of which got rejected in
the final analysis. The correspondence shows, too, that the apartment near Monaco
was acquired shortly after the commencement of their relationship as confirmation of
his affection for the defendant and to provide her wit h security in the fulness of time .
B[...] and K[...] C[...] , however, were purchased significantly later following the
commencement of the CONSOB investigation, and were registered in her name for
the reasons already mentioned.

95. The objective facts, which the defendant had not challenged, such as when
the apartment was purchased, when the CONSOB investigation commenced , and
when B[...] and K[...] C[...] were purchased, as also the correspondence between
them, confirmed Giancarlo’s version that he did not donate three immovable
properties valued significantly in excess of R50 million more than ten years
previously, to the defendant.

96. The defendant’s case in the anti -dissipation application was that “it was the
Applicant’s intention to donate the Ca p Martin property [the apartment] (being the
first property which the Applicant admits having given to me at the start of our
relationship to ‘reassure’ [her] of his feelings for [her] and the K[...] C[...] property and
cash from the proceeds of the sale of the B[...] property”.43

97. It is telling that the defendant did not say “the proceeds of the sale of the B[...]
property” but “cash from the proceeds” of that sale. I agree with the submission
made on the plaintiff’s behalf that this is an implicit acceptance of the fact that it was
never Giancarlo’s intention to buy two properties for the defendant in South Africa ,

43 Emphasis supplied.

and consistent with his offer to give K[...] C[...] to the defendant and to use some of
the proceeds of the sale of B[...] to refurbish it - an offer that the defendant did not
accept but which is in line with his position that K[...] C[...] was his to dispose of.

98. As far as Giancarlo’s motivation was concerned, the defendant’s case was
that he had purchased the properties for her “by virtue of our relationship, out of
generosity and a desire to provide me with security”. This is so inherently improbable
that it can safely be rejected. The amount involved is clearly more than security. It is
wealth such as most people only dream of. He would never have parted with more
than R50 million ultimately at the expense of his son, for whom he had to make
provision before he made provision for the defendant.

99. After about 2 months following their separation, Giancarlo paid serious
attention as to how he could address the situation. First, he had to calculate how
much he should give to the defendant, and calculated what he had spent in respect
of the three properties, the total of which was approximately €4 million. He
proceeded from the assumption that had they been married, it would have been
reasonable, fair and generous to let her have the equivalent of 50% of that amount,
that is, about €2 million.

100. Next he considered how to achieve such an outcome, to which he applied his
mind from December 2014 to March 2015, all the while managing the renovation
works in progress at K[...] C[...] and the sale of B[...], while throughout having to
attend to questio ns and problems that the defendant was posing through a large
volume of e-mails and telephone calls, most of which concerned her future life.

101. Following receipt of a proposal from the defendant’s law firm in Milan on
16 March 2015, Giancarlo arranged for a n appointment with the lawyers in Milan on
23 March 2015 to whom he explained his case and presented a proposal in terms of
which the defendant would effectively get €2,3 million which equated at the time to

more than R30 million, the largest part of which was represented by 50% of the
value of the three immovable properties. To avoid co -ownership of any of the
properties, he proposed that she should become the full owner of K[...] C[...] ,
particularly since she had previously verbally expressed this preference. His
intention was to give K[...] C[...] (then worth €1 607 314,65) to the defendant, as well
as €650 506,85 in cash and furniture valued at €42 178,50.

102. Between March 2015 and 1 August 2016 Giancarlo made several offers, all
above €2,3 million in value, in attempts to reach a friendly agreement with the
defendant which would have obviated a need for recourse to legal action, but she
consistently refused his proposals, sometimes accepting a proposal but changing
her mind a day later and rejecting it.

103. He came to suspect that this was a scheme to take advantage of s ome of
what he was offering, such as renewal of the defendant’s residence card in Monaco,
the continuation of her employment contract, living in the apartment near Monaco,
pocket money in excess of €2 000,00 per month and, finally, moving the furniture
from the apartment to K[...] C[...].

104. The e-mail exchanges between Giancarlo and the defendant speak of, on the
one hand, the fact that his intentions were always bona fide and that he was
prepared to treat her generously and kindly and, on the other, her unreasonableness
in the circumstances . His response s were aimed at allaying the defendant’s
concerns and to demonstrate that he was “no emotional blackmailer” . In the course
of these emails he made a number of offers to the defendant which she never
accepted. Not only had the defendant not placed any of the material contents of the
correspondence in issue, but Giancarlo’s responses were also consistent with his
version of the facts as set out in the founding affidavit.

105. He said that he did not want any money from her, but that he was offering her

money to ensure a future with dignity. He continued by saying that he was thinking of
assigning a large part of his current possession s to her. However, before he did so,
he needed her to be patient and wait for the sale of B[...] and for her to tell him how
she intended disposing of the apartment. This was consistent with his position that
the apartment was hers and B[...] his.

106. Of K[...] C[...] he said that this was “the property that I now wish to give you, to
be your own, fully and independently, while I reserve the right to sell B[...] to recover
a part of the money I invested, and which will also serve to raise cash for yo u”. This
was consistent with his position that both properties belonged to him.

107. In his last e-mail to the defendant, in final attempt to convince her to accept a
friendly resolution of the matter, Giancarlo made a proposal worth €2,525 million and
expressed the sincere hope that she would take his advice and accept the proposal.

108. A significant aspect of the matter was that the defendant did not revert to say
that the properties were hers to begin with, an omission consistent with what
Giancarlo said the understanding between them had been.

109. The correspondence which the defendant invoked in the anti -dissipation
application has to be seen for what it was, namely various and different settlement
proposals, none of which corroborated her version that Giancarlo had donated three
different properties, worth in the region of R50 million. Giancarlo’s version of the
facts is substantiated by the many settlement proposals he had made to the
defendant, including the ones referred to by her, all of which proceeded fro m the
premise that the properties were his to dispose of as he saw fit, as also the fact that
she did not challenge that.

110. As counsel for the plaintiff remarked, t here is a boundary between generosity
and madness. The fact that Giancarlo had put in place a Monaco company which

owns the apartment which would have left the defendant as owner of an asset worth
more than €1,4 million in the event of his death, was done by virtue of their
relationship. The purchase of the South African properties was on another footing.

111. The defendant’s statement that Giancarlo had indicated that he had found
another property, that is, K[...] C[...], and was going to sell B[...], is consistent with his
version of the facts. In the founding affidavit in the anti -dissipation application
Giancarlo said that during January and February 2014 he had searched for another
property to buy and finally decided on K[...] C[...] . The defendant admitted the
contents of this paragraph and continued by saying: “The Applicant indicated to me
that he had found another property, the K[...] C[...] property, and was going to sell
B[...] due to the high costs of renovating it ...”

112. This is consis tent with Giancarlo’s version that the property was not the
defendant’s, but his. Even on the defendant’s version the plan was to buy a house in
Constantia in South Africa to live in, not to buy two houses and for Giancarlo to sell
the one and donate the proceeds thereof to the defendant while also giving the
second house to her. It was never Giancarlo ’s and the defendant’s intention to have
two houses in Cape Town. They were actively trying to sell B[...].

113. Giancarlo instructed Mr Watson to attend to the transfer of B[...]. From the e-
mails between him, estate agents and Mr Watson concerning B[...], and the
correspondence between him, estate agents and Mr Watson concerning K[...] C[...],
it is apparent that Giancarlo was the principal in the transactions. He appointed Mr
Watson, and he took all the decisions regarding the purchasing, renovating , and
selling of the properties . He arranged for payments and gave Mr Watson detailed
instructions on a continuous basis in respect of how money should be allocated and
where it should be invested . When requiring instructions or decisions, Mr Watson
would refer to Giancarlo.


114. Giancarlo was the one who liaised with the owners of K[...] C[...] , and he
determined the commission whi ch the estate agents would get The emails indicate
that it was within the parties’ contemplation (as Giancarlo had said in the anti -
dissipation application) that K[...] C[...] might in future be sold. Mr Watson knew what
Giancarlo wanted to achieve wi th the purchase of that property: although the
property would be registered in the defendant’s name, she would not be the owner .
Mr Watson accounted to Giancarlo throughout, not to the defendant, although
Giancarlo had instructed him that his invoice should be in the defendant’s name only.

115. The only time Mr Watson did not act on Giancarlo’s instructions was when he
transferred the proceeds of B[...] to bank accounts which Giancarlo assumed,
although Mr Watson did not say so, were in the defendant’s name. In view of the fact
that Giancarlo had given Mr Watson detailed instructions regarding every aspect,
even what could be considered as minutiae, of the purchase and sale of the
properties, it was unusual for Mr Watson to transfer the proceeds of the balance of
the sale of B[...] to the defendant ’s bank accounts without having received or
requested instructions from Giancarlo.

116. Be that as it may, Giancarlo did not take issue with Mr Watson’s conduct
because, as is app arent from the papers filed of record in the anti -dissipation
application, he had made proposals for the settlement of the issues between him and
the defendant which, had they been accepted, would have seen her receive a
significant portion of the proceeds of the sale of B[...].

The evidence emanating from the variation application

117. In his answering affidavit to the defendant’s application for the variation of the
anti-dissipation order (principally to allow her access to more money on a monthly
basis), Giancarlo referred to what the defendant had not disclosed in her founding
affidavit.


118. On of the aspects was that, s o as not to delay the conclusion of the trial by
becoming involved in unnecessary interlocutory disputes, Giancarlo had been
prepared to de posit the sum of R1,5 million as security for costs into his attorney’s
trust account. Had he known that the indication of his willingness to provide security
for the defendant’s costs would almost immediately be followed by an application
that her costs be financed out of the proceeds of the B[...] sale, he would not have
agreed to furnish security for costs.

119. The defendant should have informed the Court of this fact because it had
direct implications for her second prayer , which was that her attorney should be
allowed to allocate a portion of the sum of the remaining proceeds of the B[...] sale
held by them in an amount of R3,382 million towards payment of her legal fees. The
fact that security had been provided in the am ount of the defendant’s own estimate
of her fees and disbursements, was dispositive of her second claim in that variation
application.

120. The defendant failed to disclose what had happened to the difference
between the amount of R12 181 780,48 (the proceed s of the B[...] sale which were
paid to her in two instalments during 2015) and the amount of R9,9 million which she
claimed was all that remained. That meant that R2 281 781,48 of the proceeds had
seemingly been spent in less than a year and a half , or in any event remained
unaccounted for.

121. The defendant also did not disclose that by mid-2015 she had R202 813,82 in
her non-resident FNB account 6 [...], more than R488 614,57 in an FNB investment
account, and more than R2 081,71 in an FNB business ac count in the name of AM
Monaco (Pty) Ltd, which added up to another R693 510,12.

122. Giancarlo established, in the variation application, that R2 ,281 million of the

proceeds of the B[...] sale effectively remained unaccounted for. Equally importantly,
in the context of an application for a significant increase in the defendant’s monthly
“allowance” and for funds to be made available to finance her legal expenses, her
attorneys of record had also declined to provide particulars of the whereabouts of
almost R7 00 000,00 which, it was not in dispute, Giancarlo had paid into various
bank accounts. The money unaccounted for, not counting the monthly allowance
which Giancarlo continued to give her until December 2016 and which totalled
approximately R300 000,00, amounted to approximately R2 939 134,00.

123. The additional correspondence which the defendant invoked in the variation
application was mostly settlement offers, all of which she had rejected.

124. The futility of attempting to reopen the matter with reference to further
correspondence between Giancarlo and the defendant, which she could have used
in the context of the anti-dissipation application at the outset , was illustrated when
the defendant invoked a sentence from a letter dated 16 April 2015 from Giancarlo to
her, reading as follows: “In my heart, I never believed that the second property (K[...]
C[...]) belonged to me alone but simply to both of us, as a joint projec t which I would
have left you in case of my demise.”

125. The statement is not inconsistent with Giancarlo’s claim regarding the
agreement between the defendant and him in respect of K[...] C[...]. It signifies that it
was within his power to bequeath K[...] C[...] to her. It was , however, clearly
inconsistent with her claim that she was the sole owner thereof.

126. What the defendant did not refer to was Giancarlo’s statement in the same
letter, where he said that he had the right to a refund of the costs , or at least a major
portion thereof, incurred in respect of the purchase of B[...], the money which she
then wanted to use to finance her monthly living costs and her legal expenses. In
any event, if regard is had to the letter as a whole, it is clear that it was a settlement

offer, in which Giancarlo’s “new proposal” (which the defendant rejected) would have
seen her get R30 210 800,00.

127. Further correspondence put up in the variation application evidences that
Giancarlo’s intentions were bona fide, and that he was prepared to treat the
defendant generously. There is nothing which is inconsistent with his case in these
proceedings.

128. In his answering affidavit Giancarlo reiterated that, when their ways parted in
November 2014, his personal asset s were of significantly diminished because of the
world-wide financial and economic collapse at the time. Most of his investments had
been dramatically hit and he could not afford to be excessively generous when he
considered how best to discharge his mora l obligation towards the defendant. He
nevertheless paid serious attention as to how best he could address the situation.
This is followed by a repetition of how, in the final analysis, he arrived at his proposal
of €2,3 million, which he had previously explained in the context of the anti -
dissipation application.

129. Against this backdrop Giancarlo said that he found it impossible to understand
how the defendant could expect to whittle away the proceeds of the B[...] sale to
which, as a matter of law, she had no entitlement.

The evidence of Manfredi de Filippo

130. Manfredi de Filippo , Giancarlo’s son, gave oral evidence. He has tertiary
qualifications in law and banking.

131. Shortly before he died, Giancarlo wrote a power of attorney to Manfredi to
deal with the lawyers and all his affairs. Manfredi had promised his father that he
would see the case through. Manfredi has no vendetta against the defendant but

came to South Africa out of filial duty to his father.

132. He testified that Giancarlo had called him on a regular basis to assist him with
the case, to understand general concepts of law , and to help him draft and
communicate with his legal representatives.

133. On Manfredi’s birthday, the day on which Giancarlo had been re -diagnosed
with cancer, he asked Manfredi to become more involved in the case to assist him,
because the diagnosis of can cer was a death sentence. Thereafter they had worked
on the case together with renewed vigour and focus.

134. Following the termination of the relationship, the defendant’s financial future
was the subject of substantial contemporaneous and subsequent conver sations
between Giancarlo and Manfredi. Having just come out of a bruising divorce,
Giancarlo was not going to remarry, but he wanted to be generous and to provide for
the people he had been in a relationship with. That was also the case with the
defendant.

135. Giancarlo had confided in Manfredi that when the defendant came to Monaco
when they first met, she was a woman of extremely limited means , and he
maintained her throughout the relationship. Following the termination of the
relationship Giancarlo still wanted to do well by her and made an offer of the order of
€2,3 million that he would remit to the defendant, having sold the properties. This
was entirely a matter of his generosity which was disproportionate to what Manfredi
would have advised, but it was Giancarlo’s right and Manfredi respected him for that.

136. Giancarlo, being Italian, wanted to a good head of family. He assisted the
defendant’s mother financially, and made substantial financial provision for the
defendant’s brother in the form of loans ( but effectively donations) worth about
€50 000,00 to €70 000,00. Manfredi is in possession of the loan contract in his

capacity as executor to his father’s estate, but Giancarlo had asked him never to
enforce it.

137. In response to the defendant’s claim that Giancarlo bought two properties for
her in South Africa, Manfredi testified that Giancarlo repeated many times,
contemporaneously and during the litigation afterwards, that he was aging; he had
suffered reversals of fortunes during his divorce and the investments that he retained
subsequent to that did not perform as well as he had expected; and that it was not a
particularly good time in global finance.

138. Manfredi did not regard Giancarlo as the most gifted of business people . His
world-weariness was getting worse , and he was losing trust in a number of
institutions broadly. He was slightly dissatisfied with life in Monaco and yearned for
new horizons . He was ensnared in legal matters in Italy where he was a co -
defendant, and he had become concerned that the Italian state was over -reaching
and would continue to over -reach. As an aging man, the winters in Europe were no
longer attractive and Giancarlo had thought, in consultation with the defendant who
had lived in South Africa previously, that South Africa would be a good place to be.
He discovered to his great pleasure that there were many Italians here, usually
involved in the wine and restaurant industry, and decided that he wanted to acquire a
property here to spend the winter months . Giancarlo believed that South African real
estate, as long as it was not levered, was likely to be a good investment.

139. Because Giancarlo was concerned about the over -reach and the delicate
legal situati on in Italy, he had thought to register the first property , B[...], in the
defendant’s name . CONSOB and his general character explained why he had
entered into this arrangement with the defendant. Manfredi remembered that, after a
45-minute diatribe ab out roofers who never showed up to restore B[...], Giancarlo
decided that there was another property in Constantia which was far nicer, better
located, with better bones, and “more amenable to fix up” . Since it was going to be

sold quickly, he decided t hat he would buy K[...] C[...] even before selling B[...] and
that, when he sold B[...], the money had to come back to him.

140. Giancarlo took all the decisions to the degree that he was there with the
conveyancers, and the accountants, and did all the designs himself. The money (all
of it) came from Giancarlo and there was no doubt that when he wanted B[...] to be
sold, it was sold and when he wanted K[...] C[...] to be acquired, it was acquired . He
paid for t he work that was performed . When the matter came to a head, the three
properties (including the apartment near Monaco) represented more than 50% of his
estate.

141. Manfredi testified that t he defendant gave Giancarlo no support , only
problems, and that she antagonised almost everyone. There were voluminous
exchanges of e -mails between Giancarlo and the defendant after the termination of
the relationship. Manfredi’s general understanding of it is that they concern broadly
the matter of Giancarlo’s wish to see her well looked-after following the end of the
relationship, and Giancarlo was concerned about various particulars by which this
could be achieved.

142. Manfredi referred to a n e-mail of 8 March 2014 from Giancarlo to Mr Watson
in which he mentions that they might want to re-sell the property and re -export the
money in future, which was consistent with Giancarlo’s thinking about the properties .
They were supposed to be summer properties to be acquired and used and then,
when it would no longer be convenient, or he coul d not take enjoyment out of them,
they would like any holiday property be re -sold and the funds repatriated to him.
Giancarlo’s intention was to find one property, not two, and he was very much the
decision-maker in the fate of these assets.

143. Manfredi said that the defendant was aware of Giancarlo’s legal problems. He
pointed to correspondence from the defendant to Giancarlo to the effect that in

accommodating him with the sale in progress at the price that he had accepted for
B[...] she would transfer the proceeds as he had requested except for an amount
needed to cover all costs of the housing claim and her upkeep until the sale of the
company in France . This, Manfredi said , was consistent with the conversations that
Manfredi and Giancarlo had regarding arrangement of his affairs in a way that would
be morally fair to the defendant.

144. With reference to correspondence to which he had been referred, Manfredi
said that it testified quite clearly to the fact that Giancarlo was the owner of the
properties. As to the defendant saying that “I insist on asking you how much you
think to leave me of the sale of B[...] Cape Town and I beg you to answer” , he
commented that she was obviously not talking about an entitlement but she was
asking for something.

145. In an e-mail of 27 July 2015 Giancarlo inter alia told the defendant that he had
donated the apartment to her after two years of their cohabitation but that he never
spoke of donating either B[...] or K[...] C[...] to her and that she knew very well t hat
their registration in her name was exclusively due to his need to protect his
investments from possible recourse action, following his well -known judicial “events”.
Manfredi commented that this was entirely consistent with what Giancarlo had told
him, as it was consistent “with the analysis of his estates when he was then
deceased afterwards”.

146. Following the rejection of Giancarlo’s last settlement offer he had become
extremely disillusioned and felt betrayed by the defendant. As a result he resorted,
for the first time in his life, to legal action.

147. The apartment was furnished twice. The first time Giancarlo paid for
everything which the defendant, without notifying him, subsequently shipped in a
container to South Africa. Giancarlo had to refurbish it again. Shortly after he died

Manfredi went there with staff to select for transfer Giancarlo’s remaining movable
assets, mainly clothes, furniture, and some objects of artistic value. The next day the
defendant arrived at the apartment and called the police , claiming that she did so
because the neighbours had reported that some suspicious people were emptying
the building , and she wished to protect Giancarlo’s assets. Manfredi believes that
she was foiled in an attempt to take his father’s belongings.

148. Manfredi concluded his evidence by stating that Giancarlo lived his final years
in a way that no human being should. He was consumed by this case, and by the
fact that what he thought was rightfully his and rightfully his heir’s was going to be
denied him. Despite the cancer, despite the work, he would wake up every morning
and write long e -mails to his lawyers, compiling Excel sheets and spreadsheet
models to show what evidence there was. “This was a case that consumed him, and
he did not live well for it.”

149. Manfredi believes that the defendant had litigated his father to death. She
brought application upon application, vexatious and without merit, in attempts to
delay the trial and the final determination of the dispute. The last discussion t hat
Manfredi had with his father was about the litigation.

The circumstances in which default judgment was given against the defendant

150. I have mentioned that the defendant did not cross-examine Manfredi, and that
judgment was given in her absence at the resumption of the trial on 2 September
2024. This came about as follows.

151. Since 2016, when the litigation between the parties commenced, attorneys
have come on record for the defendant on eight occasions, and she was, at different
times, represented by at least five advocates, three of whom were senior counsel.
On the last two occasions when the trial was set down (being 12 March 2024 and

again on 29 July 2024), the defendant was unrepresented. This caus ed, on each
occasion, a postponement to assist her in obtaining legal representation, to no avail.

152. It is necessary to take a step back.44

153. On 3 November 2023 (six years after the institution of the action) the
Honourable Justice Cloete issued a certificat e of trial readiness. At the time, the
plaintiff formally placed the following on record: "The Plaintiff records that he is
prejudiced by the Defendant's continuous attempts to delay the finalisation of this
matter. The Defendant records that she does not agree but that she too wishes the
matter to be finalised as quickly as possible. The Acting Deputy Judge President has
thus granted permission for an expedited trial date, preferably in the first term of
2024."

154. The transcript of the proceedings indicates that Cloete J emphatically urged
the defendant to obtain legal representation, and the services of an interpreter,
without delay.

155. The Registrar allocated 12 March 2024 as the expedited trial date. It soon
became apparent that the defendant was not keen on going to trial , and she
instituted a second application for the rescission of the anti -dissipation order barely a
month before the trial was to commence. She also failed to supplement that trial
bundle, as she had been directed to do by Cloete J in November 2023 in preparation
for trial.

156. The plaintiff’s attempts nevertheless to have the trial commence on 12 March
2024 came to naught. On 13 March 2024 the Honourable Acting Justice Sidaki,
having declined to de termine the second rescission application, postponed the trial

44 The correspondence and events leading up to the allocation of 29 July 2024 as the trial date are set
out in more detail in the unreported judgment dated 16 September 2024 delivered in respect of the
contempt application.

to 29 July 2024 for the reason that the defendant was still unrepresented.

157. Whilst giving his judgment postponing the trial, Sidaki AJ expressly directed
the defendant to get legal representati on immediately, granting a postponement
specifically to give her an opportunity to do so. He pointed out that the defendant had
been cautioned repeatedly b y the plaintiff’s attorneys to ensure that her legal
representation was ready for trial. Sidaki AJ gave firm directives to the defendant to
appoint legal representatives without delay and to have them liaise with the plaintiff's
legal representatives to secure the commencement of the trial on 29 July 2024. It is
clear from the transcript of the proceed ings that the defendant understood this. She
confirmed that she understood and that she would give effect to the directives.

158. Yet, on 29 July 2024, when the trial commenced, the defendant was still
unrepresented, eventually resulting in a postponement of the matter on 31 July 2024
for one month to 2 September 2024 in order for her to obtain legal representation.
This was done after argument by both parties of the second rescission application
and the contempt application, and after the plaintiff had given his evidence in chief.
The defendant insisted that she was not capable of cross-examining the plaintiff, and
that she required legal representation. She also maintained that her mental health
was suffering as a result of the litigation, and that she was for that reason unable to
continue on her own.

159. The reasons proffered by the defendant for her failure to engage legal
representation are not satisfactory. In her oral evidence before this Court in
opposition to an application to hold her in contempt of c ourt,45 the defendant
explained that she had approached various attorneys, but that they were not willing
to assist her. She provided a list of the attorneys that she approached, but could not
be specific as to exactly when she asked for assistance from each of them. It
transpired that the defendant had requested those attorneys to assist her on a

45 On 30 July 2024. The defendant had failed to deliver an answering affidavit but wished to oppose
the application.

contingency basis as, so she stated, she could not afford legal representation.

160. Under cross -examination the defendant admitted that she had in 2019 sold
the apartment in France, for which Giancarlo had paid €1 455 000,00 in 2009. I have
referred to the fact that the latter had purchased the apartment in a real estate
company of which he and the defendant were the only shareholders, with him
holding a usufruct and the defendant the remaining interest, resulting in her
becoming the legal owner of the company and its asset upon his death in 2018. She
was at liberty to use or dispose of the apartment as she saw fit.

161. Taking into account the current exchange rate, and assuming that the
apartment was sold for the same amount as that for which it had been purchased
(she has not protested that it was sold for less), the probabilities are that the
defendant has access to some R28 million from the sale.

162. The defendant was, however, adamant t hat the sale price and the
whereabouts of the proceeds of the sale were none of the plaintiff’s or this Court’s
business, and refused to disclose what she had done with the funds. The impression
with which the Court was left was that the defendant held the view that her overseas
funds were to be left untouched, and that she was unwilling to use them to defend
the action in South Africa.

163. The defendant was, for the same, reason, unwilling to engage an interpreter
for whose services she had to pay. She challenged the Court with the fact that, in the
magistrate’s court, she had on a previous occasion utilised the services of an
interpreter for free. When it was pointed out to her that she would have to pay for the
services of an interpreter in the High Cou rt, she flatly refused to do so on the basis
that she could not afford it.

164. The defendant’s evidence also indicated that she did not trust or “like” lawyers

who displayed anything but the fullest confidence in her case. It appeared that
several of the f irms that she had consulted conveyed doubts about the merits of her
case to her. This resulted in her not engaging them.

165. According to the defendant, most of her legal representatives had failed her
either because they were in cahoots with the plaintiff's legal team or intim idated by
the plaintiff’s senior counsel – allegations without substance that have been repeated
throughout correspondence and in affidavits before this Court, as well as before
Cloete J at the time when the matter was declared trial ready, and before Sidaki AJ
when the trial was set down for hearing on 12 March 2024. 46 Despite the defendant
having been warned against the making of these unsubstantiated allegations, she
has not desisted from doing so.

166. Be that as it may, the defendant was warned on 31 July 2024 that the trial
would proceed on 2 September 2024. She was dissatisfied with the date and asked
for more time, because she said that she had planned to take a trip to Italy at the end
of August 2024. When the Court asked her for confirmation of her travel
arrangements, she conceded that she had not in fact made any arrangements yet.

167. The Court was not inclined to delay the tr ial yet again for more than a month.
The defendant pertinently asked what would happen if she did not come to Court on
the date of the resumption of the trial. The Court warned her not to do that, as the
matter could proceed in her absence. It was impres sed upon her that she should
approach an attorney without delay, and not at the last minute. The defendant
understood all of this.

168. The plaintiff’s attorney sent correspondence to the defendant between 31 July
2024 and 2 September 2024 to remind her that she should act expeditiously. This
had no effect. On 30 August 2024, the Friday afternoon prior to the resumption of the

46 Similar allegations were made before the Taxing Master at the taxation in 2024 o f various costs
orders that had been granted against the defendant over the preceding years.

trial, the defendant called for a meeting with the plaintiff’s representatives and with
me as presiding judge. It transpired at the meeting that she had still not obtained
legal representation. She gave no reason for the situation other than stating that it
was for the same reason as before – meaning that she could not pay for legal
services. That excuse is not cred ible. The defendant cannot cry poverty on the one
hand, and on the other refuse to tell the Court what the status is of the proceeds of
the sale of the apartment in France.

169. The defendant was asked whether she intended to seek a postponement
when the trial resumed the following week, and she expressly replied in the negative.
She made much of her alleged fragile mental health, and asked the Court to take
cognizance thereof. She offered to email a medical certificate from her general
practitioner. I requested that such certificate be furnished under cover of an affidavit
from the general practitioner, or that the latter make herself available to give
evidence as to the defendant’s condition on the resumption of the trial.

170. The defendant sought a directive to the effect that the trial would continue
online, so that she would not have to come to court. The plaintiff opposed the
request, and I declined it because of the practicalities involved in running a trial
remotely. The defendant resided locally and h ad easy access to the Court. Running
virtual hearings is, moreover, not an entitlement in this Division, and there should be
cogent reasons for such an arrangement. The meeting concluded with the defendant
being warned to appear in Court on the Monday morning.

171. On 2 September 2024 at 10:00, when the matter was called, the defendant
was absent. After having stood the matter down for inquiries to be made, the
plaintiff’s counsel informed me that the defendant had sent email correspondence to
his attorney at about 09:45 that morning. The email had not immediately been picked
up on given the plaintiff’s team’s efforts to get to Court in time for the start of the
hearing. It transpired that she had sent the email to my registrar, too, who saw it at

about 10: 15 and forwarded it to me. There had been no prior phone call to alert
anyone to the email.

172. In the email the defendant stated that her health status “ significantly impairs
[her] ability to be physically present at the upcoming trial scheduled for today
2 September 2024 ”. She stated that her “ health issues have been exacerbated by
the prolonged stress of the legal proceedings ”, and asked the Court to take this into
account in dealing with the matter.

173. The defendant attached a certificate from her general practitioner. It was
dated 29 August 2024 and recommended “sick leave” from 29 August 2024 to 8
September 2024. It described the diagnosis and stated that the defendant had been
referred to another healthcare provider for evaluation. The certificate was not given
under cover of an affidavit, and the defendant made no mention in her email of her
general practitioner being available to furnish oral evidence.

174. The defendant further attached an email message from a receptionist at a
private hospital informing the defendant that an appointment with the healthcare
provider in question would only be available in October 2024. The receptionist
indicated that an in-person consultation would be required. The email had been sent
on 29 August 2024 at 17:22, that is, after the meeting with the defendant on the
Friday afternoon before the trial.

175. The final attachment was a letter from a doctor in Rome who had seen the
defendant in February 2024. He prescribed medication to treat the condition.

176. All of this correspondence is a far cry from constituting evidence of a condition
that required immediate medical assistance and that would have prevented the
defendant from attending Court in person.


177. The defendant may be a lay person, but lay people are also expec ted to play
by the rules. The defendant had litigated this matter for eight years, and she knew
what her responsibilities were. The Court had on more than one occasion bent over
backwards to assist her. Despite this, the defendant’s strategy to delay the trial once
again at the last minute was transparent. She had been wilful in her failure to obtain
legal representation. Her oral evidence had previously revealed that she did not
genuinely try to carry out the Court’s directives, in that she persisted in refusing to
pay for legal advice despite the fact that she was on the probabilities more than able
to do so. The defendant cannot cry poverty on the one hand, and on the other refuse
to tell the Court what the status is of the proceeds of the sale of t he apartment in
France. As I have mentioned, too, t he defendant refused to appoint any legal
representative who dared to give her objective advice as to the merits of her
defence. To overcome these obstacles, the defendant started to beat the health
drum.

178. When it becomes clear that a litigant’s conduct is aimed at delay and at
abusing the process of Court, it should not be tolerated. The plaintiff had yet again
travelled from Italy for the resumption of the trial . His father’s estate needed to be
wound up. Costs were mounting. In these circumstances, I was not inclined to delay
the finalization of the matter any longer. There was no postponement application
before me, and I accordingly allowed the plaintiff to wrap up such evidence as he
wished to give, heard argument on his behalf, and granted an order in the
defendant’s absence. I was of the view that the plaintiff’s evidence, viewed as a
whole, had overcome the requisite standard of proof, and the defendant furnished no
evidence to contradict it.

Costs

179. Whilst the defendant bemoaned the fact that the litigation between the parties
was dragging on unreasonably, she was herself to blame for the state of affairs. She

complained about a lack of legal representa tion, but persisted in the attitude of not
wishing to pay for the services of an attorney, and of not trusting any legal
representative who offers advice that did not accord with her own beliefs in the
merits of her case. She made offensive allegations of the most serious kind against
most of the attorneys and advocates involved in this matter to date, and it is thus
small wonder that she ultimately claimed that none of the law firms which she ha d
approached was prepared to represent her.

180. The defendant sh owed a marked disrespect for the Court and the plaintiff in
the manner in which she approached the trial, and in the manner in which she
conducted herself in court. Her conduct was objectively vexatious. I was of the view
that it warranted an award of costs on the attorney and client scale.47

Order

181. In the circumstances, I granted the order set out at the beginning of these
reasons.


___________________
P. S. VAN ZYL
Acting judge of the High Court


Appearances:

For the plaintiff: J. C. Heunis SC, instructed by Webber Wentzel Attorneys

47 Johannesburg City Council v Television and Electrical Distributors (Pty) Ltd and another 1997 (1)
SA 157 (A) at 177D: “ … in appropriate circumstances the conduc t of a litigant may be adjudged
‘vexatious’ within the extended meaning that has been placed upon this terms in a number of
decisions, that is, when such conduct has resulted in ‘unnecessary trouble and expense which the
other side ought not to bear’ (In re Alluvial Creek 1929 CPD 532 at 535).”


The defendant in person