REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
CASE NUMBER: 7573/2022
REPORTABLE: ~NO (1)
(2)
(3) OF INTEREST TO THE JUDGES: ~NO
REVISED.
In the matter between:
NIKO VLADIMIR KUCER
-and-
DE KUILE BOERDERY CC
JUDGMENT PLAINTIFF
DEFENDANT
2
BRESLERAJ:
Introduction:
[1] The matter came before court as a trial. The Plaintiff claims judgment against the
Defendant in the following terms:
1.1 A declarator that a partnersh ip agreemen t existed since 2012 between the
Plaintiff and the Defendant;
1.2 A declarator that the partnersh ip was dissolved with effect from 31 August
2020;
1.3 A declarator that the improved value of Portion 3 of the farm Hoornbosch ,
attributable to the establishmen t thereof of a residential lodge providing
residential rental accommodat ion, inter alia to persons engaged on the Medupi
Power Station, comprises a partnersh ip asset which is to be brought into
account in the liquidation of the partnersh ip;
1.4 An order that the partnership is liquidated on the following basis:
1.4.1 The Defendan t shall deliver a statement of account setting out the
income and expenditure of the partnersh ip, and reflecting the
Plaintiffs 50% share of the net profit due to the Plaintiff during the
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period July 2012 to August 2020, within 15 (fifteen) days from the
date of the order;
1.4.2 The Plaintiff shall accept or dispute the amount set out in the
aforesaid account within 15 days from the date the account was
delivered, and if accepted, the Defendant shall forthwith pay such
amount to the Plaintiff.
1.4.3 In the Plaintiff disputes the correctness of the account the Plaintiff is
granted leave to set the matter down for a debatement of the account
and for an order for payment of the amount due, with interest thereof
at the rate to be determined in terms of the Prescribed Rate of
Interest Act from time to time, from 1 September 2022 to date of
payment.
1 .4.4 That 50% of the amount of the improved value of the Defendant's
farm attributable to the establishment of the lodge be paid to the
Plaintiff
1.5 That the issue of the determination of the value of 50% of the improved value
of the Defendant 's farm and the prayer for payment of the amount due to the
Plaintiff, be postponed sine die.
1.6 That the Defendant be ordered to pay the costs of suit including costs to
Counsel on Scale B.
4
[2] The Plaintiffs claim is premised on an oral partnership agreemen t concluded during
or about July 2012, between the Plaintiff and the Defendan t, duly represented by
Gerhardus Human (who has since passed away) (hereinafter 'Mr. Human'). The
alleged terms relevant for purposes hereof are:
2.1 The purpose of the partnership is to develop and operate a lodge providing
residential accommodat ion on Portion 3 of the Farm Hoornbosch , LQ 439
(the 'Farm'), owned by the Defendan t.
2.2 The primary target market would be the provision of accommoda tion to
persons engaged in the construction of the Medupi Power Station.
2.3 The Plaintiff and the Defendant would each contribute R620,000.00 to the
partnershi p to fund the costs of construction of the lodge on the Farm.
2.4 As security for the Plaintiff's contribution and the Plaintiff's 50% share in the
partnershi p, the Plaintiffs contribution was recorded in a written loan
agreemen t.
2.5 Once the lodge has been constructed and was operational, the Plaintiff
would be actively involved in the day-to-day operation thereof and would be
entitled to reside on the Farm.
5
2.6 Profits realised by the partnership from the operation of the Lodge would be
shared equally between the Plaintiff and the Defendan t.
2. 7 As partial security for the payment of the Plaintiffs 50% share in the
partnership in the event of the Plaintiff's death, the partnership would pay
the monthly premium of a life policy to be taken out on the life of the Plaintiff
in an amount of R1 ,500.000.00.
[3] The Plaintiff pleads that both parties contributed an initial amount of R620,000.00
towards the construction of the Lodge. An additional amount of R160,000.00 was
contributed at a later stage.
[4] From approximately October 2012, the Lodge started operating and generating an
income. A banking account was opened for the business of the partnership , on
which account the Plaintiff and Mr. Human had full transactional rights.
[5] The monthly profits were shared equally between the parties.
[6] During or about March 2020, Mr. Human passed away. The Defendant repudiated
the partnership agreement which repudiation was accepted by the Plaintiff, resulting
in the agreement being cancelled.
[7] The Defendant's Plea was amended on several occasions. In the original Plea the
Defendant raised inter a/ia the following defences:
7.1 The existence of the partnership agreement was denied.
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7.2 Mr. Human was neither a member of the Defendant, nor an employee and
was therefore not entitled to bind the Defendan t to any partnership
agreemen t.
7.3 The Plaintiff lent and advanced an amount of R620,000.00 to the
Defendan t, which amount was duly repaid by the Defendant.
7.4 At the time of the conclusion of the loan agreemen t, the Plaintiff and the
Defendan t, duly represented by Mrs. Hester Human (hereinafter Mrs.
Human') concluded an oral agreement in terms whereof the Plaintiff was
offered employment with the Defendant as a manager for the duration of a
specific contractor's accommodation period (being ELBCON). ELBCON's
accommodat ion contract was terminated in July 2020.
7.5 During the course of the ELBCON accommodat ion contract, the Plaintiff
would aid with the manageme nt of the residence and receive a
management fee equal to 50% of the net profits per month from the
accommodat ion contract.
7.6 The Plaintiff would prepare an invoice to the Defendan t, which invoice was
payable upon demand.
[8] The Plaintiff submitted that the version of the Defendant was changed during pre
trial and after a request to deliver IRP 5 certificates issued in favour of the
7
Defendant. The Defendant now stated that the Plaintiff was an independent
contractor and as such no IRP 5 records are available.
[9] During the trial, and whilst the Plaintiff was under cross-exam ination, the Defendant
applied for a postponement of the matter to enable the Defendant to amend its Plea.
[1 0] The amended Plea provided for the following:
10.1 The Plaintiff was appointed as Lodge Manager on the basis of an
independent contractor.
10.2 During the conclusion of the agreement , the Plaintiff was represented by
Mrs. Human, alternatively Mr. Human.
10.3 The Plaintiff was entitled to receive a management fee equal to 50% of the
gross income of the lodge, less Value Added Tax.
10.4 Monthly commissions would be earned only after the loan to the Plaintiff
was repaid.
10.5 The Plaintiff would prepare a monthly invoice in respect of the management
fee and any expenses paid by the Plaintiff personally on behalf of the
Defendan t.
8
Issues that require determination:
[11] The Plaintiff launched an application for the separation of the issues in terms of Rule
33(4) i.e that prayers 1 to 4 and 6 of the Particulars of Claim be determined
separately.
[12] By agreement, and with the consent of the Court, the issues were separated.
Essentially, this Court is called upon to determine if a partnership agreement came
into existence between the Plaintiff and the Defendant. If so, the Court must
determine the appropriate manner in which the partnership estate should be
determined and divided.
[13] It is evident that the parties agree that should the court find that a partnership indeed
existed, the statement and debatement of the account and the determination of the
improved value of the Farm, will be determined in the continuance of the trial in due
course.
The Plaintiff's testimony:
[14] The Plaintiff testified that he met Mr. Human on a professional hunting course prior
to 2009 and became friends as they shared in interest in hunting and fishing. At
that time, Mr. Human was running operations on two farms, being Van Wykspan
and Hoornbosch.
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[15] At the commencemen t of their friendship, the Plaintiff was not made aware that Mr.
Human was not a member of the Defendan t as Mrs. Human was not involved in the
day-to-day running of the Close Corporation. Her sole members hip only came to
his knowledge in approximately 2014.
[16] During the course of 2009, the Plaintiff and Mr. Human started discussing the
developme nt of the River Camp contained on the Farm (the 'River Lodge'). It was
agreed that the Plaintiff would loan and advance an amount of R380,000.00 to the
Defendan t, which loan would be repaid over a period of three years. It was
furthermo re agreed that after repaymen t of the loan, the Plaintiff would be entitled
to one third of the net income of the venture for a further period of 5 (five) years.
[17] Mr. Human managed this business venture. By August 2012, the loan was repaid
in full. From August 2012, the Plaintiff was therefore entitled to one third of the net
profit. He did not receive due and timely payment as partial payments were
sometimes made with the further payments only being made once funds became
available.
[18] During or about the middle of 2012, the Plaintiff and Mr. Human started discussing
the construction of another lodge (the 'De Kuile Lodge').
[19] During the initial discussions between the parties, it was agreed that the Plaintiff
and the Defendant would each contribute an amount of R600,000.00 in respect of
the developme nt of the De Kuile Lodge. The initial agreement was that the Plaintiff
would loan and advance the funds to the Defendan t for purposes of the
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development. The parties would share the profit derived from the operation of the
De Kuile Lodge on an equal basis after taking overhead expenses into
consideration.
[20] It was furthermore initially agreed that Mr Human would manage the De Kuile Lodge
whilst the Plaintiff would manage the River Lodge.
[21] As the parties provided customers with food and laundry services, it was agreed
that the Plaintiff would be entitled to the income derived from the food and laundry
services delivered at the River Lodge whilst the Defendant would be entitled to the
income derived from the food and laundry services delivered at the De Kuile Lodge.
[22] The Plaintiff pertinently testified that no employment agreemen t was ever concluded
between himself and the Defendant , no Unemployment Insurance contribution was
deducted, and no IRP 5 document was ever provided to him.
[23] The Plaintiff furthermore testified that he had no fixed working hours, nor did he
perform any instructions at the behest of either Mr. Human or Mrs. Human as he
was a partner and not an employee. He likewise denied that he was ever employed
as an independent contractor .
[24] The Plaintiff testified that during the course of the partnersh ip agreement and save
for his contribution in the form of labour and management services, he also
constructed two rooms for the staff at his own cost. This was never repaid to him
as it was deemed part of his contribution.
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[25] During approxima tely April or May 2013, the Plaintiff and Mr. Human decided that a
loan agreemen t would be prepared and signed. This agreemen t was backdated to
1 July 2012 to protect the Plaintiff. As further security, a life insurance policy was
to be taken out on the life of the Plaintiff.
[26] Hereafter , Mr. Human and the Plaintiff were ad idem that they are partners in
perpetuity and that the Plaintiff would continue to receive 50% of the net income
derived from the De Kuile Lodge venture.
[27] Further contributions included the renovation and transformation of two carports into
two rooms, payment of the approval of building plans and the installation of an I
beam for which the Defendant was not refunded.
[28] The Plaintiff also testified that two bank accounts were opened -one relating to the
operations of the River Lodge and the other relating to De Kuile Lodge. The Plaintiff
had shared signing rights on both these accounts.
[29] As to the allegation that the amount of R620,000.00 referred to in the loan
agreemen t constituted a loan that was repaid, the Plaintiff testified and
substantiated every payment (with the exclusion of one unrelated refund) with
documentary evidence showing that the payment in fact constituted a profit share
payment (although reference was made to 'commission' in his corrobora ting
documentat ion) .
[30] It stands to be noted that the Court found the reasoning of the Plaintiff to be sound:
if indeed these payments were the repayment of a loan, then the Plaintiff did not
receive any remunerat ion for services rendered (as alleged by the Defendant ) but
12
in fact utilised his own funds to repay himself. This does not presuppose that a
partnersh ip agreement was indeed concluded -it merely serves as confirmat ion
that this court accepted the evidence that the said loan was not repaid.
[31] During 2013, the Plaintiff was advised by his tax consultant that the payments
should be deemed to be repayments of a loan in respect of all payments up to June
2013, and thereafter it should be invoiced as 'commission'. The Plaintiff testified
that he is not well versed in tax law and as such, he accepted the advice from his
tax consultant, especially in so far as a discussion allegedly took place between his
tax consultant and the accountant of the Defendant.
[32] During 2017, the River Lodge profit sharing agreemen t came to an end. The
separate bank accounts in respect of River Lodge and De Kuile Lodge were closed
and the parties made use of the Defendant 's main bank account.
[33] After the passing of Mr. Human in 2020, the Plaintiff was prohibited and frustrated
from performing any management functions at the lodge. If he issued an invoice,
as was the normal practice, he will be told that the Defendant already issued an
invoice to the client. His internet access to the Defendant's account was also
blocked the day after the passing of Mr. Human.
[34] A meeting took place between the Plaintiff, Ms. van Vuuren (the accountan t of the
Defendant ) and Ms Rule van Vuuren (the other member of the Defendant ). During
the meeting, he was advised that there would be changes going forward. He then
indicated that the partnersh ip should be terminated, and he should receive the value
13
of his share in the partnership to him. Ms. van Vuuren pertinently informed him that
the building had no value as it has been written off in the books.
[35] A subsequent meeting between the Plaintiff and Mrs. Human also proved to be
futile. Mrs. Human took full control of the business, and all personnel were
instructed to seize reporting to the Plaintiff.
[36] During or about the 29th of June 2020, the Defendant's attorneys recorded in writing
that the Plaintiff was merely a tenant on the farm and therefore had no right to
manage the staff.
[37] In the initial cross examination, inter alia the following submissions were made to
the Plaintiff:
37.1 There is no mention of a partnersh ip agreement in the written loan
agreement ;
37.2 Ms. van Vuuren will testify that during the meeting between the Plaintiff and
Mr. Human, the loan was discussed and the fact that the Plaintiff would be
appointed as a lodge manager. No mention was made of a partnersh ip
agreement.
[38] After the amendment of the Plea referred to herein above, the Plaintiff was recalled
for further evidence in chief with specific reference to the new issues raised in the
amended Plea.
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[39] The Plaintiff testified that he did not conclude any oral agreement with the
Defendant , duly represented by Mrs. Human, during 2012. The agreement was
concluded with the Defendant , duly represented by Mr. Human.
[40] Of particular importance is the testimony by the Plaintiff that it is not possible for the
alleged Independent Contractor agreement to 'come to an end' when the work at
Medupi seized as, to the present day' the works has not seized. Evidence was led
to the effect that the Defendant continued receiving payments from ELBCON during
the months September 2022 to January 2021, thus rebutting the Defendant's
version that the work seized, resulting in the termination of his 'independen t
contractor agreement' .
[41] As to the allegation that the Plaintiff was entitled to 50% of the gross income of the
venture, this was vehement ly denied by the Plaintiff. Likewise, he denied that he
was entitled to recover 100% of the expenses paid. This agreemen t only related to
expenses unrelated to the Lodge (for instance repairs to the Defendant 's tractor).
[42] During cross examination, the testimony of the Plaintiff remained unwavering. The
Defendant's version, to be testified to by Ms van Vuuren, was clearly and
unambiguously rejected.
[43] Of importance for purposes of this judgment are the following submissions made by
counsel for the Defendan t during the course of cross examination, in closing
argument and in his Heads of argument:
43.1 No written proof could be provided that a partnership exists.
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43.2 The written loan agreemen t makes no mention of a partnershi p.
43.3 The loan agreement was concluded to protect the investment of the Plaintiff.
43.4 The Plaintiff prepared a spread sheet highlighting the repayment of a loan.
43.5 The Plaintiff's documentat ion makes no reference to 'profit share' but
consistently refers to 'Commission' and 'loan'.
43.6 The Plaintiff pertinently instructed his accountant that the amounts should
be allocated to repayment of a loan and thereafter, commission.
43. 7 The accounting records of the Defendant does not refer to a partnership
agreemen t nor does separate accounting records exists for such
partnership . It is common cause that the bank accounts utilised were that
of the Defendant.
43.8 Having regard to inter a/ia the aforesaid, it is evident that in the Plaintiff's
own mind, no partnership existed. There was furthermore no evidence that
Mr Human had the intention to bring about a partnership agreement. The
conduct of the parties are therefore not 'unequivocally consistent with
consensus on the issue' .1
1 Butters v Mncora 2012 (4) SA 1 (SCA)
16
[44] The Plaintiff correctly highlighted in its Heads of Argument that the testimony
regarding the calculation of the payments made to the Plaintiff, was not placed in
dispute in cross examination. Once again, in this court's view the manner in which
the 'commission' payments were calculated is of no real relevance to the
determination if a partnership agreemen t came into existence.
[45] In this regard, specific cognisance is taken of the fact that the late Mr. Human cannot
testify and clarification can only be gleaned from the conduct found to be common
cause between the parties.
The Defendant 's testimony: Ms H van Vuuren
[46] From the onset it must be noted that the Defendant elected not to call Mrs. Human,
notwithstanding her apparent availability to testify and her alleged involvement in
the Defendant's version of the contractual relationship between the parties. It must
also be noted that Mrs. Human was married to the late Mr. Human. One would
assume that she would have personal knowledge of the actions of the late Mr.
Human.
[4 7] Ms. van Vuuren testified that she has been the accountant of the Defendant since
2009. During or about 2012, Mr. Human and the Plaintiff met with her to discuss
his intention to start a new lodge operation in the name of the Defendan t. He
mentioned that funds will be advanced by the Plaintiff to finance the venture. She
recalled that, at some stage, the Plaintiff provided a document to her that she utilised
17
to make entries in favour of the Plaintiff in his loan account ledger in the books of
the Defendan t.
[48] According to Ms. van Vuuren, no mention was made of a partnership at any stage
during her communica tions with the Plaintiff and Mr. Human. Nor does it appear
that either party presented her with any corroborating documenta tion in respect of
the alleged partnersh ip.
[49] Ms. van Vuuren testified that she did have a discussion with the Plaintiff's tax
consultant. She wanted to put the Plaintiff on the payroll of the Defendant. The
Plaintiff however informed her that he will attend to his own taxes and as such, he
made use of his own tax consultant.
[50] She furthermore testified that, had there been any partnership , she would have
drafted separate financial statements in respect of the said partnersh ip. The
payments made to the Plaintiff was therefore recorded as 'commission' in the books
of the Defendant. She confirmed that, to the best of her knowledge, that was the
nature of the payments made by the Defendant to the Plaintiff.
[51] Contrary to her statement that she was the accountant for the Defendant from 2009,
she alleged that she had no knowledge of the 2009 River Lodge loan made by the
Plaintiff to the Defendant. She only learned about this loan when compiling the
financial statements from 1 March 2012 onwards. A loan account ledger was
accordingly created in the financial bookkeep ing of the Defendant in the name of
the Plaintiff with an opening balance of R300,000.00, premised on the information
provided to her by Mr. Human. When explaining the journals done by her to the
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effect of crediting a certain amount to the loan account of Mrs. Human, she
pertinently testified that this was done due to lack of information pertaining to the
nature of the amount.
[52] This Court had difficulty in accepting the evidence of Ms van Vuuren in so far as it
appears that numerous journals and corrections were done to 'balance the books'
(so to speak), without these journals demonstrating the factual background of the
transaction. By means of example, she described the 'contributions' of Mrs. Human
as capital contributions that were presumab ly later journalled to a loan account. It
follows that the nature of a 'capital contribution' is far removed from the nature of a
'loan account'. On her own concession, the bookkeeping of the Defendan t was in
shambles and she lacked sufficient information to give the Court a clear and
accurate analysis of the financial statements of the Defendant.
[53] Ms. van Vuuren, contrary to the version in the Plea, testified that she was not privy
to the discussions and arrangements between the Plaintiff and Mr. Human as she
was not present. She did, however, testify that the Plaintiff was not an employee of
the Defendan t in the true sense of the word.
[54] Of particular importance is the concession by Ms. van Vuuren that the relationship
between parties should be examined as opposed to merely accepting the terms
utilised in a document. As such, commission can be earned by employees,
subcontractors or partners. It is however unlikely that an employee would inject
capital in a company as this is normally reserved for a partner.
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[55] This must be borne in mind against the backdrop that the Defendan t does not deny
that a loan agreemen t was concluded between the Plaintiff and the Defendant. It
follows that an employee or contractor can loan monies to a business without
holding an interest or share in such business.
[56] This court found the testimony of Ms. van Vuuren reliable in so far as her lack of
knowledge of all the personal dealings between the Plaintiff and Mr. Human is
concerned. Nothing much turned on her testimony as she was evidently, and
admittedly, not present when the alleged partnership agreement was concluded.
She received instructions from Mr. and Mrs. Human as to the contents of the
accounting records and it appears that she performed those instructions to the best
of her abilities.
[57] Neither the Plaintiff nor the Defendant called any further witnesses.
Applicable law:
[58] A partnership is often defined as a contract between two or more parties in term of
which each contributes or undertakes to contribute towards an enterprise to be
carried on jointly by them with the object of making a profit and of sharing it between
them.2
2 Sharrock R, Business Transaction Law, 2017, Juta at page 516
20
[59] The essentialia of a partnership agreement has been authoritatively dealt with in
numerous cases. In the well-known case of Joubert v Tarry & Co3 referred to by
the Plaintiff, the requirements for the existence of a partnersh ip were recorded to
be the following:
55.1 Each one of the partners must bring something into the partnership , or binds
himself to bring something into it, whether it be money, or his labour or skill.
55.2 The business should be carried on for the joint benefit of both parties;
55.3 The object of the business should be to make profit; and
55.4 The contract between the parties should be a legitimate contract. (It was
subsequently held that this is not a requirement peculiar to a partnersh ip
but rather applicable to all types of contracts).
[60] These requirements originate from the formulation by Pothier4 that has been
accepted by the South African courts5 as correct.
3 2015 TPD 277
4 RJ Pothier, A Treatise on the Law of Partnership (Tudor'sTranslation 1.3.8)
5 See for instance Bester v Van Niekerk 1960 (2) SA 779 (A) at 783H -784A and Pezutto v Dreyer 1992
(3) SA 379 (A) at 390A -C
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[61] The fact that a partner is entitled, in addition to a share of the profits, to payment for
his contribution does not, per se, alter the nature of the contract.6
[62] Brand J, in the case of Butters v Mncora7 held as follows at [14]:
'[14] It appears to be uncontrovers ial that, apart from particular partnerships
entered into for the purpose of a particular enterprise , Roman and Roman
Dutch law also recognised universal partnerships. Within the latter category,
a distinction was drawn between two kinds. The first was the societas
universorum bonorum -also referred to as the societas omnium bonorum -
by which the parties agree to put in common all their property, present and
future. The second type consisted of the societas universorum quae ex
quaestu veniunt, where the parties agree that all they may acquire during the
existence of the partnership , from every kind of commercial undertaking , shall
be partnership property.'
[63] Both types of partnersh ip can be constituted tacitly, that is, by mere consent and
circumstance. Neither type requires an express agreement. Like any other contract,
they can also come into existence by tacit agreement derived from the conduct of
the parties. 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 was reached.8
6 Sharrock R, Business Transaction Law, 2017, Juta at page 516 with reference to Uys v Le Roux 1906
TS 129
7 2012 (4) SA 1 (SCA)
8 Henning JJ, Perspectives on the Law of Partnership in South Africa, Juta at page 88
22
[64] In this regard, the Court is obliged to look at substance, rather than form, to
determine what the intention of the parties are. Where more than one inference can
be drawn from the conduct of the parties, the test for when a tacit universal
partnersh ip can be held to exists is whether it is more probable than not that a tacit
agreement was reached. 9
[65] In Muhlman v Muhlman10 the following was stated at 635:
'Before tacit agreement can be held to have been reached in any case it must
be clear that the conduct relied upon is not only consistent with the making of
the contract alleged but is consistent with no other reasonable interpretation.
(Festus v Worcester Municipality 1945 CPD 186 at 193; Wille and
Millin Mercantile Law of South Africa C 17th ed at 16; and
cf Isaacs v Isaacs 1949 (1) SA 952 (CJ at 960 (bottom of page)). In
Wessels Law of Contract in South Africa 2nd ed vol 1 para 266 the learned
authors state that before a court can find that there has been a tacit contract,
it must be satisfied that the person whom it is proposed to fix with a tacit
contract must be fully aware of all the circumstances connected with the
transaction , the act must be unequivocal and the tacit contract must not extend
to more than what the parties contemplated. '
[66] As far as the ambit of the two types of partnership referred to herein before is
concerned , the universal partnership proper in principle comprises all the present
9 Butters v Mncora 2012 (4) SA 1 (SCA) at [18] -[19]
10 1981 (4) SA 632 (W)
23
and future property of the partners. Thus, all the assets which the partners possess
at the inception of the partnersh ip as well as all the assets they obtain during the
duration of the partnership from whatever source. The general partnersh ip
comprises only the profits derived from all the commerc ial activities of the partners
during the duration of the partnership.11
[67] In practice the dividing line between the two types of partnership may not always be
very apparent, for instance where the parties contribute the assets they have at or
obtain after the inception of the partnership to a single joint business, to which all
devote all their time, labour and expertise and from which they derive their only
income, which they reinvest in their business and use for their joint maintenance.12
[68] In casu the Plaintiff alleged an oral agreement with express, alternatively implied,
further alternatively tacit terms comprising that of a partnersh ip. It is not necessary
for purposes of this judgment to determine the exact nature of the alleged
partnersh ip. Suffice to state that it appears that the Plaintiff alleges that it is a
combination of the two types of partnerships . The Plaintiff does not only claim the
profit that was derived but also a proportionate part of the improved value of the
immovable property that belongs to the Defendant.
[69] The Plaintiff is however obliged to proof his case on a balance of probabilities. The
test applied in cases where a tacit agreemen t potentially came into effect between
11 Henning JJ, Perspectives on the Law of Partnership in South Africa, Juta at page 89
12 Fink v Fink and Another 1945 WLD 226
24
the parties, has been clearly stated herein before: there must be no other
reasonable inference from the conduct of the parties.
[70] The Defendant has raised numerous incongruities in the testimony of the Plaintiff
such as the fact that no reference is made to a partnership in the documentation
discovered by the Plaintiff. Moreover, the Plaintiff's own documentat ion makes
reference to 'commission' and 'manageme nt fees' as opposed to profit sharing. Of
considerable concern to this court is the fact that the Plaintiff has apparently
instructed his personal tax consultant to also 'capture' the payments to him as
'commission' and 'loan repayments'. Needless to say, this has considerable
taxation implications as opposed to capturing same as income of profit sharing in
the partnersh ip. It must therefore be assumed that the Plaintiffs instructions to his
tax consultant reflected the true factual position.
[71] Having regard to the testimony of Mrs. Van Vuurren, this Court finds it curious that
Plaintiffs insistence that a partnership came onto effect, did not extend to his
dealings with her. In this Court's view, if it was intended by both parties that a
partnersh ip came into effect, one would assume that there would be some record
keeping on behalf of the said partnership separate from the records held by the
Plaintiff. The Plaintiff's testimony did not highlight any instructions to Mrs. Van
Vuurren to prepare, or even discuss, financial statements. The Plaintiff did however
take care to communicate with her regarding his personal taxes. This begs the
question why he did not raise the accurate bookkeeping records of the partnersh ip
at any stage.
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[72] Having a holistic view of the oral evidence and taking into consideration the
documentat ion presented during the oral evidence, it is evident that the relationship
between the Plaintiff and the Defendant is susceptible to a reasonable alternative
interpretation being that of an employer / employee or employer / contractor
relationship as intimated to by the Defendant.
[73] Having concluded that there is a reasonable alternative interpretation, this Court
does not deem it necessary to define the said relationship between the Plaintiff and
the Defendan t. It is indeed irrelevant if it is employer / employee or employer /
contractor . The onus was on the Plaintiff to proof its case, and the Defendant does
not carry any onus to disprove.
[74] The Plaintiffs case therefore stands to be dismissed. There is no reason why the
costs should not follow the outcome of the proceedings. Having regard to inter alia
the nature of the proceedings , the amount of preparation required, the volume of
the documents presented to court and the importance of the proceedings to the
parties, costs to counsel are warranted on Scale C.
Order:
[75] In the result the following order is made:
75.1 The Plaintiff's claim is dismissed with costs on party and party scale
including costs to counsel on Scale C.
APPEARANCES:
FOR THE PLAINTIFF
INSTRUCTED BY
FOR THE DEFENDANT
INSTRUCTED BY
DATE JUDGEMENT RESERVED
DATE OF JUDGMENT 26
M BRESLERAJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
Adv. D Marais
Kern and Partners
Johannesburg
nicola@kernlaw.co.za
clive@kernlaw.co.za
morris@ktpsa.co .za
Adv. BD Stevens
Machobane Kriel Incorporated
Pretoria
Litigasie1@machobanekriel .com
akruss@machobanekriel. corn
J.Landsberg@dbolaw.co.za
23 August 2024
19 February 2025