REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
( l) REPO RTABLE : YES/NO
(2) OF INT~ RES T TO THER JUDGES: NO
(3) REVISED: NO
D ote: 11 September 25 E van der Schyff
In the matter between:
JACOBUS CORNELIUS VAN EDEN
and
FILIP ROBER T CHRIST IANA DELCLOO
BARK AT THE MOON (PTY) LTD
JUDGMENT
Van der Schyff J
Introduction
CASE NO: 36792/2021
APPLICANT
FIRST RESPONDENT
SECONDRESPQNDENT
(1] This application was initially before me in the opposed motion court in August 202 3.
I referred the matter to oral evidence. A w ritten judgmen t setting out the reasons for
the referral was handed down on 5 September 2023. The application was set down
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for oral evidence in March 2025. An inspection in loco was conducted on 27 March
2028. Evidence was led on 28 March 2025 and .on 23 April 2025. Oral argument was
presented on a virtual platform on 11 June 2025.
[2] The applicant (Mr. Van Eden) seeks an order terminating a partnership he alleges
was entered into between himself and the first respondent (Mr. Delcloo), and the
appointment of a liquidator to oversee the winding up of the partnership. Mr. Delcloo
denies that a partnership was entered into and seeks the dismissal of the.application.
[3] I indicated in the judgment handed down on 5 September 2023 that neither the
applicant nor the first respondent set out their cases clearly, succinctly, and
unambiguously. I unfortunately have to reflect that neither of the parties impressed
as witnesses. Neither confided fully in the court. As in the affidavits filed, although to
a lesser extent, both attempted to discredit each other. I am , however, satisfied that
there is sufficient credible evidence before this court to make definite factual findings.
Where inferences were drawn, they were drawn from properly established objective
facts.
Inspection in loco
[4] An inspection in loco was conducted to provide more clarity regarding the extent of
the developments on the property. The parties were provided with a record of the
observations made during the inspection, and neither objected to the record of the
inspection forming part of the record of the proceedings.
Core issue
[5] As stated, Mr. Van Eden seeks the termination of a partnership he alleges existed
between himself and Mr. Delcloo. As a result, the core question that needs to be
answered is whether Mr. Van Eden has made out a case that the agreement entered
into between himself and Mr. Delcloo constitutes a partnership agreement, or to put
it differently, whether the business venture they engaged in is a partnership.
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Essentia/ia of a partnership
[6] A partnership is established by means of a valid agreement that embodies the basic
essentialia of a partnership. The agreement need not be reduced to writing. The
agreement must be entered into with the true intention of creating a partnership.
[7] In Joubert v Tarry & Co 1 De Villiers JP remarked that determining what constitutes
a partnership between persons is not always an easy matter.2 With reference to
. Pothier, De Villiers JP, confirmed the essentialia of a partnership to be the following:
(i) each of the partners brings something into the partnership or bind themselves to
bring something in, .(ii) the business should be carried on for the joint benefit of both '.
parties, (iii) the object should be to make profit, and (iv) the contract should be a
legitimate contract.
[8] De Villiers JP, concluded:3
'Where all these four essentials are present, in the absence of something
showing that the contract between the parties is not an agreement of
partnership, the Court must come to the conclusion that it is a partnership.
It makes no difference what the parties have chosen to call it; whether they
call it a joint venture, or letting and hiring. The Court has to decide what the
real agreement is between them.'
[9] The Appellate Division, as it was known then, revisited De Villiers JP's explanation
as captured above, in Purdon v Muller, 4 and expressed its view as follows:
'The meaning of this qualification is, I think, that, although the presence in
an agreement of the four essentials w ill prima facie establish the existence
of a partnership, such presence is not necessarily conclusive but mus t yield
1 1915 TPD 277 at 279
2 Joubert, supra, 280.
3 Joubert, supra, 281.
4 1961 (2) SA 211 (A).
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Evidence
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to contrary intention as revealed in the agreement itself read in the light of
the other admissible evidence. '
Mr. Van Eden
[10] Mr. Van Eden testified that Mr. Delcloo bought an immovable property. He was a
practicing attorney at the time , and Mr. Delcloo sold antique books. They bounced
off ideas of how the property could be used to generate an income. The idea of them
doing business together and running a wedding venue developed gradually. They
then agreed that Mr. Delcloo wou ld put up his small holding towards the business,
and that he would provide the money for the development. Mr. Van Eden explained
that the property was cleaned up, existing structures improved, and additional
structures built. The second respondent, the company Bark at the Moon (Pty) Ltd,
was registered with the aim of using it as a mechanism to create income. The
business would later be sold. Each party would receive what they contributed,
whereafter the profit would be divided equally. The parties planned to move to
Croatia, where they would put up a bed-and-breakfast business. The agreement
between them was not reduced to writing, as they were good friends like David and
Jonathan.
[11] The aspect where Mr. Van Eden's evidence became vague is why the business
never got off the blocks. In the founding papers, the impression was created that the
business could not continue due to the Covid-19 pandemic that ensued. Under
cross-examination it became evident that he discussed the sale of the business with
Mr. Delcloo before Covid-19 was a reality in South Africa. I have no doubt that Mr.
Van Eden 's personal circumstances moved him to discuss the termination of the
business agreement w ith Mr. Delcloo - this eventually precipitated the breach
between the parties. Mr. Van Eden's personal circumstances at the time, are,
however, not of concern to this court.
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[12] The cross-examination was mainly directed at the source of the money used by M r.
Van Eden to develop the property and the nature of the legal entity that the parties
used to conduct their business. Mr. Delcloo's counsel emphasised that a company
was created, not a partnership. Mr. Van Eden steadfastly maintained that a
partnership was constituted and that the company served as the mechanism through
which the partnership conducted its business.
Mr. Delcloo
[13] Mr. Delcoo confirmed that he purchased an immovable property. He and Mr. Va n
Eden bounced ideas around about how the property could be utilised. The idea of
utilising the property as a wedding venue originated during the brainstorming
session.
[14] Mr. Van Eden phoned him the following morning. Mr. Van Eden offered to provide
funding for the property's development. In turn, he wanted 'a place to crash, a place
to get away from home , a place to clean his head.'
[15] Mr. Van Eden contributed a substantial amount of money to the property's
development. It was put to Mr. Delcloo by his counsel, leading his evidence in chief:
'At that point - now I [am] skipping, I might be skipping part of it, but at that
point your testimony is that apparently there was enough money or a lot of
money . Did you know at that point where the money originates from?'
[16] I pause to state that Mr. Delcloo inferred that the money provided by Mr. Van Eden
was tainted in that it was money that he siphoned from his trust account. That Mr.
Van Eden 's financial contribution to the development of the property was significant,
however, was not challenged in Mr. Delcloo's oral evidence, although he initially
downp layed it in the answering affidavit.
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[17] When Mr. Delcloo was asked by his counsel to comment on Mr. van Eden 's evidence
that the parties agreed to establish a business, M r. Delcloo was evasive. He said -
'There was just offering to help me , you know , and there was a lot of talking, you
know , between us.' He felt that he was 'conned' by Mr. Van Eden . He testified during
cross-examination that it was he who later proposed that Mr. Van Eden share in the
business's profit, if any.
[18] When asked about the auctioning of books in the hall, Mr. Delcloo confirmed that 'I
was selling books of [in] the venue and that was before we were actually in
business.'
[19] Mr. Delcloo denied that a partnership had been established. He regarded a
partnership as 'a joint business signed, registered and everything'. His evidence is
that the second respondent, the company , is the only relevant business entity. No
business was , however, achieved through the company.
[20] When cross-examined, Mr. De lcloo, however, testified that there was an
arrangement relating to profit. He said:
The agreement was after deducting all the costs like a normal business, as
you know , take the costs away , and whatever is over, you know , or invest
again in the business as I proposed, or we share the profit.'
[21] Although Mr. Delcloo denied that he ever indicated that he would relocate to Croatia
with Mr. Van Eden , he did acknowledge that the topic of Mr. Van Eden relocating to
Croatia came up.
Discussion
[22] It cannot be gainsaid that Mr. Van Eden and Mr. Delcloo entered into an agreement
to conduct a business venture. Mr. Delcloo contributed the use of his property, while
Mr. Van Eden contributed financially. The evidence shows that Mr. Van Eden spent
significant amounts in developing the property. Both parties testified that the
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business they proposed to conduct, namely a wedding venue, would be carried on
for their joint benefit. There is no indication that the agreement between them was
not legitimate. On this score, three of the four essentialia of a partnership agreement
are met.
[23] It is undeniable that both Mr. Van Eden and Mr. Delcloo were motivated to conduct
a wedding venue business in the hope of achieving positive financial returns. They
both wanted to make money out of the arrangement. They then registered a
company , Bark at the Moon (Pty) Ltd, cited herein as the second respondent, as the
vehicle through which the business would be conducted. The profits that would be
generated, would be generated through the business. When the business came to
its end, it would be sold, the parties would each receive the value of their initial
contribution, and the remaining profit would be divided equally between them.
[24] The gist of the argument raised on behalf of Mr. Delcloo is that, if any profit is
generated, it would be generated in and for the company. This excludes the idea
that a partnership came into existence, they contend.
[25] Without the underlying agreement Bark at the Moon (Pty) Ltd exists in a vacuum .
No shareholders' agreement was concluded, and no loan account was established.
No bank account was opened in the company's name, and no assets were
transferred to the company.
[26] Before Bark at the Moon (Pty) Ltd was registered, the parties had already engaged
in a business relationship. This underlying business relationship was a partnership
agreement, and a partnership estate came into existence. The evidence that the
company was created as a vehicle to manage the business was not disputed. There
is no legal obstacle preventing partners from using a company as the vehicle through
which to conduct and manage the business of the partnership.
[27] The evidence of both parties supports the following factual findings:
[27] The evidence of both parties supports the following factual findings:
a. Mr. Van Eden and M r. Delcloo formed the intention to conduct a business
together - Mr. Delcloo's evidence, in fact, is that he proposed that Mr. Van Eden
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share in the profit that stands to be generated. Whether Mr. Van Eden's evidence
or Mr. Delcloo's evidence on this score is preferred, the end result is the same .
b. Mr. Delcloo contributed his property, and Mr. Van Eden made substantial
financial contributions. Mr. De lcloo's contention that he just provided the 'use of
his property' and did not put up the property is untenable if regard is had to the
facts of the matter where fixed structures were erected on land.
c. The business was to be conducted for the parties' joint benefit, with the aim of
making a profit. Using a company as the vehicle to conduct the partnership's
business did not undermine or dilute this aim.
d. A legitimate purpose was pursued by the parties.
[28] The court in Cinema City v Morgenstem5 said:
Costs
'No contracts are made in a vacuum; there is always a setting in which they
have to be placed.'
The parties might not have sat down and defined their agreement formally as a
partnership, but the proven facts constitute the essentialia of a partnership. Two
legal entities were created as a result of the parties' agreement, and the existence
of one does not rule out the other. In Mr. Delcloo's own words - 'The agreement was
after deducting all the costs like a normal business, as you know , take the costs
away , and whatever is over, you know, or invest again in the business as I proposed,
or we share the profit'. With no loan account the parties wou ld not have been able
to recoup the value of their initial contributions from the company. The only way this
aim can be realised is through the partnership agreement.
[29] The general rule that costs follow success applies. This includes all the costs of the
application, including previously reserved costs.
5 1980 (1) SA 796 (A) at SOSA.
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ORDER
In the result, the following order is granted:
1. The partnership between the applicant and first respondent is terminated on the
following terms:
1.1. A liquidator is to be appointed with the authority to realise the partnership assets at
a market-related price in a manner most beneficial to the parties, and subject to 1.2
below, to liquidate the liabilities of the partnership, to prepare a final account, and
to pay the net assets of the partnership to the respective partners in equal shares;
1.2. The net proceeds arising out of the sale of the said immovable property shall be
divided between the applicant and the first respondent in equal shares and shall be
calculated by deducting, among others, the sum total of the following liabilities from
the purchase price attained in respect of the immovable property, which shall be
paid from the proceeds of the sale:
1.2.1. The full outstanding amount due to the bondholders of any bonds
registered over the immovable property;
1.2.2. The full outstanding amount due to the local authority in respect of the
immovable property;
1.2.3. The amount required in order to obtain the necessary clearance
certificate from the local authority;
1.2.4. The amount required to obtain the necessary electrical compliance
certificate;
1.2.5. Estate agents' and/or auctioneers' commissions;
1.2.6. Any necessary expenses that were incurred, that stand to be deducted
in the discretion of the liquidator after determination thereof by the
liquidator;
1.2.7. The costs of the liquidator.
1.3. Should the applicant and the first respondent be unable to agree on the identity of
the liquidator within three weeks of the date of this order, they are to approach the
Chairperson of the Pretoria Society of Advocates, who is to appoint a liquidator on
the basis and utilising a process that she deems appropriate;
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1.4. Both parties are to fully co-operate with the liquidator in so far as the sale of tlhe
immovable property is concenrned, and sign all the necessary documentation in
order to give effect thereto, failing which the Sheriff in whose area the said
immovable property is situated, be and is authorised to sign such documentation
on behalf of either, or both, of the parties;
1.5. The liquidator's fee is to be determined in accordance with the fees stipulated in •
Tariff Bin the Second Schedule to the Insolvency Act 24 of 1936, as amended.
2. The first respondent is to pay the costs of the application on scale B, including previously'
reserved costs.
E van der Schyff
Judge of the High Court
Delivered: This judgement is handed down electronically by uploading it to the electronic file of
this matter on Caselines. As a courtesy gesture, it will be emailed to the parties/their legal
representatives.
For the applicant:
Instructed by:
For the first respondent:
Instructed by:
Date of the hearing:
Date of judgment:
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Mr. C .A . van Bruggen
Van Bruggen Attorneys
Adv. A.C.J. van Dyk
Van Dyk Steenkamp Attorneys
27 & 28 March 2025, 23 April 2025, 11
June 2025
11 September 2025