IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
Case No: D14092/2023
In the matter between:
L[...] E[...] S[...] Plaintiff
and
G[...] M[...] J[...] V[...] R[...] Defendant
J[...] A[...] J[...] V[...] R[...] Third Party
This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for
handing down is deemed to be 16 February 2026.
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
ORDER
______________________________________________________________________
1. Judgment is granted in favour of the plaintiff and against the defendant for:
a) Payment in the sum of R800,000.00.
b) Interest on the sum of R800,000 at the rate of 11.75% per annum calculated from
24 November 2023 to date of final payment.
c) Costs of suit, including all reserved costs, to be taxed on Scale B.
2. The defendant is directed to pay the third party’s costs of suit, including any
reserved costs, on Scale B.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
SHAPIRO AJ
Introduction
[1] The plaintiff ("M s S[...]") sues the defendant ("Mr V[...] R[...] ") for payment of
R800,000.00. Mr V[...] R[...] is Ms S[...]'s son-in-law, being married to the Third
Party ("Ms V[...] R[...]") but is currently estranged from her and in the process of
what appears to be an acrimonious divorce. Ms S[...] alleges that she loaned the
R800,000 to Mr V[...] R[...] and that the loan was repayable on demand. Mr V[...]
R[...] admits receipt of the money but alleges that M s S[...] donated the money to
him. Mr V[...] R[...] joined Ms V[...] R[...] to the proceedings in terms of Rule 13,
on the basis described below.
The pleadings
Ms S[...]
[2] Ms S[...] alleges that she and Mr V[...] R[...] concluded a verbal agreement of
loan in or about November 2021 in terms of which she would lend him R800,000
which would be payable into his personal banking account, and the loan would
be repayable on demand, but without the levying of interest or fees. Ms S[...]
pleads that she performed in terms of the agreement and made payment of the
amount on 23 November 2021. Ms S[...] demanded repayment of the loan from
Mr V[...] R[...] on 24 November 2023.
[3] In his Plea, Mr V[...] R[...] admitted receipt of the money in his personal banking
account but pleaded that the payment was a donation to both him and Ms V[...]
R[...]. Alternatively, Mr V[...] R[...] pleads that if it should be found that the
payment was a loan, then it was made to him and Ms V[...] R[...] jointly.
[4] In the Annexure to Mr V[...] R[...] 's Third Party Notice against Ms V[...] R[...]
issued in terms of Uniform Rule 13, he pleads that the payment was a donation
to him and Ms V[...] R[...] alternatively was a loan to them jointly and, further
alternatively, and if the court found that the loan was not made jointly but rather
jointly and severally, Mr V[...] R[...] then claimed a contribution from Ms V[...]
R[...] of 50% of the loan, together with 50% of interest claimed and any taxed
costs awarded in favour of Ms S[...].
[5] Mr V[...] R[...] then advanced two further alternatives, pleading that if it was found
that the payment was a loan, it was paid in substitution of a portion of the loan
owing to Mr and Ms V[...] R[...]'s mortgage bond holder and that Mr V[...] R[...]
reduced the amount owing on the mortgage bond by R800,000 which was to the
benefit of both parties and Ms V[...] R[...] made no such contribution, therefore,
entitling him to a declaration that he and Ms V[...] R[...] were not equal co-owners
of the immovable property that they owned but rather that his share to the
property was 50% plus R800,000 and Ms V[...] R[...] 's share was 50% less
R800,000.
[6] Further relief was sought in respect of the proposed sale of the property, but I
was advised that the property had been sold and therefore the relief sought in
respect of the sale fell away.
The evidence
[7] Ms S[...] testified that in the weeks before the payment, it had become
increasingly clear that Mr V[...] R[...] was struggling financially in circumstances
where he had reasonably recently opened his own accounting and tax practice.
After discussions with her husband, as well as with Mr and Ms V[...] R[...], she
agreed to lend Mr V[...] R[...] , R800,000 .00 which would then be paid into the
couple's mortgage bond account thereby substantially reducing their monthly
mortgage bond instalments 1. Ms S[...] testified that it was agreed that the money
would be repayable on demand and that interest would not be charged. Based
on this, and on 23 November 2021, Ms S[...] transferred the amount to Mr V[...]
R[...]'s personal banking account, having been provided with those details by him
earlier that day.
[8] Ms S[...] replied to an email sent by Mr V[...] R[...] with those details and attached
a document entitled " G[...] and J[...] loan", which was a Notification of Payment
issued by her bank , reflecting the payment of R800,000. The stated reference
under "Payee Details" was "Loan from S[...]".
1 The evidence revealed that the monthly instalments were reduced from approximately R12,500.00 to
approximately R3,500.00.
[9] Ms S[...] testified that she loaned the money to Mr V[...] R[...] because he was the
one that required the assistance at that stage, even if he and Ms V[...] R[...]
would both derive some benefit from the consequential reduction in the monthly
bond instalments. Ms S[...] testified that she had done the same for Ms V[...] R[...]
when she was on maternity leave and had then decided not to return to work,
advancing her the total amount of R700,000 .00 in early 2020 that likewise was
paid by Ms V[...] R[...] into the bond account, reducing the instalments as well.
According to Ms S[...], she did not believe it to be fair to impose a liability on the
party who did not require the funds and therefore Ms V[...] R[...] was liable to
repay to both her and her husband the R700,000 .00 in the same way that Mr
V[...] R[...] was liable to repay to her the R800,000.00.
[10] Ms S[...] denied that she had donated the funds to Mr V[...] R[...] and she
stated that she had entitled the proof of payment to Mr V[...] R[...] as "G[...] and
J[...] loan" because she had been busy at the time working on the documents
relating to both this loan and the 2020 loan to Ms V[...] R[...].
[11] Ms S[...] testified that if the R800,000 .00 was a loan to both parties, she
would have deposited the amount in Ms V[...] R[...]'s account and would not have
required Mr V[...] R[...]'s personal banking details.
[12] The 2020 loan was also called up by the S[...]s at the end of 2023 but
could not be repaid from the bond account because Mr V[...] R[...] refused to
agree to sign the necessary forms.
[13] Ms S[...] stated that if the amount had been a donation, it would have been
declared as such on the relevant tax return for that financial year , which were
prepared and submitted by Mr V[...] R[...], who was her tax practitioner.
[14] Ms S[...] was cross examined extensively and on a wide range of issues.
She forcefully denied that Mr V[...] R[...] had been pressured into marrying Ms
V[...] R[...], as had been put to her . As far as determining whether the payment
was a loan or a donation, it was put to M s S[...] that the payment was always
intended to be a donation and that it was "transformed" into a loan only after Mr
and Ms V[...] R[...] separated and the relationship between the S[...]s and Mr
V[...] R[...] changed. It was suggested that Ms S[...] would have been more
particular with her record keeping if it was truly a loan, as had occurred when
loans had been made to Ms V[...] R[...] in respect of a business that she
purchased and where amounts had been advanced from S[...] Holdings (Pty) Ltd,
a company of which the S[...]s and Ms V[...] R[...] were also directors.
[15] Ms S[...] denied this, stating that there was a difference between loans
advanced from a business or from her or her husband to another business, which
also carried interest charged and had fixed repayment terms, and a loan
advanced to her daughter or son -in-law in a personal capacity , where interest
was not charged and which loans were payable on demand only.
[16] Ms S[...] denied that the payment to Mr V[...] R[...] was made out of
generosity and to thank him for remaining in post when the S[...]s exited a
business known as G[...] W[...] I[...] N[...] -F[...](Pty) Ltd after they sold their
shareholding in the company. Ms S[...] denied that the funds were given to the
V[...] R[...] in the same way that other members of her family had been given gifts
when G[...] W[...] was sold and that Ms V[...] R[...]’s cousin had been given the
Copy Ink business by the S[...]s, in the same spirit of generosity. It was put to Ms
S[...] that the payment was made to Mr V[...] R[...] in 2021 when the transaction
between G[...] W[...] and purchaser of the shares was finalised. Ms S[...] denied
this, stating that no further amounts had been paid to Mr S[...] after the initial sale
of shares for R120 million in 2018 2 . According to M s S[...], Mr V[...] R[...]
remained at his employment because he did not have another job to go to and it
would have been irresponsible for him to resign without the prospect of
employment.
[17] It was put to Ms S[...] that the amounts advanced to Ms V[...] R[...] likewise
had been gifts, something that M s S[...] denied. She stated that she and her
husband had advanced a number of loans to M s V[...] R[...] including for the
original purchase of Ms V[...] R[...]'s apartment, when she purchased her car and
for her caesarean section when her first child was born.
[18] Ms S[...] was pressed on payments made to Ms V[...] R[...] and which
were described as "director's fees" that were accompanied with emailed
instructions from her about where the monies should go, including whether
amounts should be paid either to her or to M r S[...] in the payment of certain
loans. Ms S[...] admitted that the payments were made and stated that the
payment of director's fees was justified and that she was equally entitled to make
suggestions or to give direction to her daughter about what should happen with
that money.
[19] It was put to M s S[...] that the payment of R800,000 was a donation but
was described as a "loan" essentially to avoid a liability to pay tax on that
amount. Ms S[...] denied this, stating that the payment advice was described as a
loan because that was its true nature. She denied that the loan had been made
jointly to Mr and Ms V[...] R[...] and stated that, were this the case, the money
would have been paid to her daughter and that just as Ms V[...] R[...] was liable to
repay inter-alia the R700,000 .00, Mr V[...] R[...] was liable to repay the
R800,000.00. Ms S[...] denied that the demand for repayment was manufactured
after Mr and Ms V[...] R[...] separated stating that it had always been a loan, but
accepted that after the relationship broke down, the loan was then called up.
Ms V[...] R[...]
[20] Ms V[...] R[...] testified after M s S[...] and her evidence was largely
consistent with M s S[...]'s evidence. Ms V[...] R[...] confirmed that the monies
advanced to her by her parents, either jointly or separately, were in the nature of
2 By the end of the trial, this was undisputed.
loans (whether personally or to her in respect of the business that she
purchased) and that it had always been clear that the amounts w ould be payable
at some point in the future. Ms V[...] R[...] testified that the loan s of R700,000.00
had been called up by her parents at the end of 2023 but that she had been
unable to make payment because Mr V[...] R[...] refused to permit a withdrawal
from the access bond account in respect of the mortgaged property. She testified
that much of the loan advanced in respect of the purchase and running of her
business had been repaid and she denied that the amount of R800,000 .00 was
either intended to be a loan to her and Mr V[...] R[...] jointly or that it was intended
to be a donation.
[21] According to Ms V[...] R[...], she was wholly liable to repay the amounts
advanced to her and Mr V[...] R[...] similarly was liable to pay all amounts
advanced to him - even if they both derived a certain benefit from the ultimate
destination of the funds. Ms V[...] R[...] also denied that the loan to Mr V[...] R[...]
was called up or re-defined as a loan after she separated from him.
[22] Ms V[...] R[...] confirmed that she had received several loans from her
parents and from S[...] Holdings (Pty) Ltd, reaching back in time to assist her in
purchasing her first apartment and vehicle and that she had always intended to
repay these amounts as she understood she was obliged to do. Ms V[...] R[...]
accepted that she was paid director's fees from time to time by S[...] Holdings
(Pty) Ltd and stated that she was entitled to those fees in her capacity as a
director. She accepted that the payment came with instructions and/or requests
from M s S[...] about how the monies should be treated, but that this was not
objectionable to her and where loan repayments were required, they were made.
The amounts were repaid because they were not gifts.
[23] Ms V[...] R[...] also denied that the Copy Ink business was given to her
cousin and testified that it had been sold first to Mr S[...], who then sold it to S[...]
Holdings who sold it to her cousin for the value of the loan account in the
business, which stood at approximately R1.4 million.
[24] A portion of Ms V[...] R[...]'s cross-examination dealt with either the history
of her relationship with Mr V[...] R[...] or the fallout from their estrangement. I do
not propose to deal with that evidence in any detail , save to state that it was not
put to her that Mr V[...] R[...] had been pressured into marrying her by her
parents.
Mr V[...] R[...]
[25] Mr V[...] R[...] testified in his own defence. He described the history of his
relationship with Ms V[...] R[...] 3 and how a number of the financial decisions
made by the couple were against his better judgement but were acceded to
because it was what his wife and parents -in-law had decided. He described the
S[...]s as a generous family and agreed that he and Ms V[...] R[...] dined at the
S[...]s' home approximately four nights a week and on occasion were taken on
holiday together with them.
[26] Mr V[...] R[...] stated that he remained at G[...] W[...] after the S[...]s'
departure at their request, so that they could have a line of sight into what was
occurring at the company because the transaction was not yet complete and
further amounts were due to be paid to the shareholders if certain profit
warranties and the like were met. Mr V[...] R[...] testified that he was not
consulted before Ms V[...] R[...] decided to resign but that this decision was
supported by the S[...]s, who gifted Ms V[...] R[...] in total R700,000 .00 in the
circumstances already described. He acknowledged that Ms V[...] R[...] had
funded the deposit of the matrimonial home and had paid the transfer costs,
whilst also agreeing that the effect of the R700,000 payment was substantially to
lower the bond repayments for which he was responsible.
[27] According to Mr V[...] R[...], Ms S[...] offered to give him R800,000 .00 in
late 2021 at a time that his fledgling business was not generating sufficient
income. He described the gift as being for two reasons, being a gift from the
S[...]s for staying in post at G[...] W[...] and out of generosity to assist in reducing
his monthly financial burden 4. Mr V[...] R[...] insisted that the R800,000 .00 was a
donation. He testified that he was responsible for the submission of Ms S[...]'s tax
returns and that he had been told that the gift would be described as a loan for
3 Although he said nothing about being pressured into marrying Ms V[...] R[...]
tax purposes and that if there was any query from SARS, this would be dealt with
by the tax practitioners dealing with S[...] Holdings’ tax affairs. He accepted that
the tax returns that he submitted on behalf of Ms S[...] did not reflect the donation
from her to him and that he did not submit the relevant form required when
donations were disclosed.
[28] Mr V[...] R[...] agreed that he had refused to permit Ms V[...] R[...] draw
R700,000.00 from their mortgage bond account to pay to the S[...]s at the end of
2023 because, as he put it, she had acted unreasonably in refusing to permit him
to hire out the matrimonial home to reduce their expenses.
[29] According to Mr V[...] R[...] , the R800,000 .00 donation was weaponised
after he and his wife separated and became part of a strategy by the S[...]s and
Ms V[...] R[...] to cripple him financially, both by demanding payment and by
instituting a series of cases against him.
[30] He accepted that he had not in either an email or text message recorded
his understanding that the R800,000.00 was a donation or what he had been told
about the description of the payment and the strategy behind describing it as a
loan and not a donation. Mr V[...] R[...] also accepted that no further payments
were made to the shareholders of G[...] W[...] by the purchaser after the initial
payment as the effects of Covid 19 meant that the profit targets that had to be
4 Mr V[...] R[...] did not testify about the alleged gifts/benefits given by the S[...] to other members of the
family when the shares were sold.
met were impossible to reach – and that this was clear to all from early 2020.
[31] Mr V[...] R[...] closed his case after the conclusion of his evidence.
The proper approach to the resolution of conflicting versions
[32] The payment of R800,000.00 was either a loan or it was a donation. In this
regard, the versions of Ms S[...] and Ms V[...] R[...] on the one hand, and Mr V[...]
R[...] on the other, are irreconcilable.
[33] The proper approach to resolving this dispute was set out by the Supreme
Court of Appeal in Stellenbosch Farmers’ Winery5 as follows:
“To come to a conclusion on the disputed issues a court must make findings on (a) the
credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As
to (a), the court's finding on the credibility of a particular witness will depend on its
impression about the veracity of the witness. That in turn will depend on a variety
of subsidiary factors, not necessarily in order of importance, such as (i) the witness'
candour and demeanour in the witness -box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with what was pleaded or put
on his behalf, or with established fact or with his own extracurial statements or actions,
(v) the probability or improbability of particular aspects of his version, (vi) the calibre and
cogency of his performance compared to that of other witnesses testifying about the
same incident or events. As to (b), a witness' reliability will depend, apart from the
factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the event in question and (ii) the quality, integrity and
independence of his recall thereof. As to (c), this necessitates an analysis and
evaluation of the probability or improbability of each party's version on each of the
disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a
final step, determine whether the party burdened with the onus of proof has succeeded
in discharging it. The hard case, which will doubtless be the rare one, occurs when a
court's credibility findings compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former, the less convincing will be the
latter. But when all factors are equipoised probabilities prevail.”
[34] In this case, I cannot determine the factual disputes without resolving two
further questions: is there a presumption against donations and who bears the
onus of proving that a payment is a donation and not a loan?
A presumption against donations and a shifting onus of proof?
[35] There is not a presumption against the making of a donation, properly so
called. Our courts have referred to a “strong probability against the gratuitous
giving away of property out of pure liberality ” 6 but have found that the
“presumption” is at most a rebuttable presumption of fact or an inference that
may in certain circumstances be drawn, depending on the facts of each case 7
5 Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) at
para [5]
6 Barkhuizen v Forbes 1998 (1) SA 140 (E) at 150B-C
7 Barkhuizen, at 156C-D
and is nothing more than a general rule of logic, founded on common sense and
ordinary reasoning, that donations are not lightly to be inferred8.
[36] The so -called presumption does not however absolve a plaintiff from
proving that monies advanced were repayable by a defendant. The court is
simply obliged “at the end of the day to bear in mind that a donation is an
inherently unlikely act and to accord that consideration whatever weight is
appropriate in the particular circumstances of the case”9.
[37] Simply put, when a defendant raises a defence of donation against any
claim, the onus of proof remains on the plaintiff . T he defendant has at most a
burden of rebuttal against a prima facie case established by the plaintiff as
“human nature being what it is , people do not ordinarily part with their property
for nothing… [and] the evidence of the party contending for a donation in his
favour calls for careful scrutiny” 10.
A simulated transaction?
[38] The question of whether the disputed transaction was a loan or a donation
goes further than a dispute or even a potential misunderstanding of the nature of
the transaction by the parties.
8 Barkhuizen, at 158D-E
9 Barkhuizen, at 159E-F
10 Mogudi v Fezi (A67/07) [2007] ZAWCHC 46 (28 August 2007) at paras [31] and [33]
[39] According to Mr V[...] R[...], the email and proof of payment that was sent
to him by Ms S[...] on 23 November 2021 was intentionally mis-described in order
to disguise the true nature of the transaction, so that the payment of donations
tax could be avoided.
[40] Put differently, and although Mr V[...] R[...] did not describe the transaction
in these terms, his defence was that the “loan” was a simulated transaction – it
was made to look like a loan, even though it was not one. In other words, the
“loan” was fictitious.
[41] The burden of proof on the question of whether a contract is fictitious rests
squarely on the party that asserts it, and if a contract is not what it seems to be, it
is for that party to prove it11 but “firstly, however, we must assume that the nature
of the transaction is what it purports to be, and the onus is upon him, who asserts
that it is something different to prove that fact” 12.
[42] In Rock Foundation13, the High Court held as follows:
“[55]… A simulated transaction is a dishonest transaction in terms of which the parties
intend a legal effect which is different to the terms that the agreement expresses
(‘Consideration 1’), which the parties dress up in a guise (‘Consideration 2’) and which is
11 Ruskin NO v Thiergen 1962 (3) SA 737 (A) 746 D-G
12 Zandberg v Van Zyl 1910 AD 302 at at pg 314
13 Rock Foundation Properties CC and Another v Dosvelt Properties (PTY) Ltd and Another (20/28515) [2022]
ZAGPJHC 1018 (21 December 2022) at paras [55] and [56]
created for the purpose of deceiving (by concealing) the real transaction (‘Consideration
3’). A party claiming simulation must satisfy the court that there is a real intention,
definitely ascertainable, which differs from the simulated intention. The court must be
satisfied (‘Consideration 4’) that there is some unexpressed agreement or tacit
understanding between the parties that is not borne out by the terms of the agreement or
some secret understanding between them. If this were not so, it could not find that the
ostensible agreement is a pretense…
[56] As part of the inquiry, the Court must determine whether the real nature and
implementation of the contracts are consistent with their ostensible form.”
[43] In Uys v National Credit Regulator14, the Supreme Court of Appeal held as
follows:
“[28] … for the court to determine the relevant intention of the parties and whether an
agreement is simulated, it must first be satisfied, on the available and admissible
evidence, that there was some unexpressed or tacit agreement between the parties,
which was not reflected in the agreement.
[29] An important corollary of these principles is that if the Court concludes, on the
available and admissible evidence, that one of the parties genuinely intended to
conclude a contract of type "X" and did not intend to disguise it as a contract of type "Y"
then there can be no finding of simulation”.
Analysis of the evidence
14 Uys NO and Others v National Credit Regulator and Another (869/2023) [2025] ZASCA 34; [2025] 3 All SA 71
(SCA) (1 April 2025) at paras [28] and [29]
[44] It is clear that Ms S[...] and her husband were intimately involved in the
financial affairs of Mr and Ms V[...] R[...], to the extent of giving direction as to
how various deposits should be handled by Mr and Ms V[...] R[...].
[45] However, the evidence shows that this dynamic suited Mr and Ms V[...]
R[...], who ultimately benefited from the largesse and interest of Mr and Ms S[...].
[46] Both parties have sought to focus on different parts of various emails
exchanged between them to prove that the transfer of R800,000.00 was a loan or
was a donation.
[47] It seems to me that the starting point in any analysis of the evidence must
be a recognition that emails exchanged between mother and daughter or
between mother-in-law and son-in-law were not intended for litigation and were
not drafted by lawyers. It was a convenient way for the family to communicate
internally amongst themselves. From the documents before me, taken together
with the chronology of events, there is no evidence to suggest that emails were
written, or attachments were labelled with a view to a potential dispute arising
sometime in the future.
[48] At face value, the documents corroborate Ms S[...]'s version. The email
from Ms S[...] to Mr V[...] R[...] carried an attachment that had been labelled as
"G[...] and J[...] loan" and the proof of payment itself carried a reference for the
payee (Mr V[...] R[...]) of “Loan From S[...]”.
[49] There were a series of other emails introduced into evidence that recorded
(on their face) loans either being advanced to Ms V[...] R[...] or requiring Ms V[...]
R[...] to repay loans. When money was paid to Ms V[...] R[...] for directors' fees
without any repayment required, the email said so together with a suggestion that
the monies used to pay electricity charges or to make provision for tax.
[50] Mr V[...] R[...] made much of the fact that loans from Mr S[...] or from the
company to Ms V[...] R[...] were accompanied by repayment schedules, which
did not occur in respect of the disputed transaction. The evidence of both Ms
S[...] and Ms V[...] R[...] was that a distinction was drawn between loans
advanced for business purposes and loans to the parties in respect of their
private affairs.
[51] This explanation is consistent with a further factor that the loans advanced
to Ms V[...] R[...] and her company, Copy Ink, were repayable within a defined
term, together with interest whilst the disputed transaction while the earlier loans
to Ms V[...] R[...], of R700,000.00 were repayable on demand and were
interest-free. There was therefore no need for either an interest calculation or a
repayment schedule.
[52] I must also consider the undisputed evidence given by Ms S[...] that loans
were advanced by her and her husband to Ms V[...] R[...] for other personal
expenses, such as her caesarean section when Mr and Ms V[...] R[...]'s child was
born. This was neither disputed during the cross-examination of Ms S[...] or Ms
V[...] R[...] nor by Mr V[...] R[...] in his evidence.
[53] In an attempt to demonstrate that the S[...]'s were an incredibly generous
family who handed out valuable gifts to other family members at the same time
that the “gift” of R800,000.00 was advanced to Mr V[...] R[...], Mr V[...] R[...]
instructed his counsel to highlight various gifts and liberal transactions between
the S[...]'s and various extended family members. Ms S[...] dealt with each of
these alleged transactions and demonstrated that what had been put to her by
Mr V[...] R[...] was factually inaccurate (at best) and false and misleading (at
worst). Mr V[...] R[...] did not refer to this evidence at all when he testified.
[54] So, if the payment of R800,000.00 was not part of a series of handouts by
the S[...]s, is there any other evidence that would support the payment having
been made as a donation?
[55] Certainly, there is no objective evidence to this effect. In addition, Mr V[...]
R[...] (who was Ms S[...]'s tax practitioner, dealing with her tax affairs) did not
prepare or upload the relevant SARS disclosure forms in the 2021/2022 financial
year disclosing the donation by Ms S[...], if in fact it was a donation.
[56] Mr V[...] R[...]'s explanation for this was that, although the advance was a
donation, it was disguised as a loan on instructions from Ms S[...] and the
accountants dealing with the company's affairs on the basis that if SARS raised
any queries about this, the company would then deal with them on behalf of Ms
S[...].
[57] I found this explanation to be somewhat tortured, and I have difficulties in
accepting it: to do so, I would have to accept that Ms S[...] intentionally saved the
proof of payment with a false description and included a false description in the
proof of payment itself. I would also have to accept that Mr V[...] R[...], knowing
this, made himself a party to what, in effect, was a fraud on the fiscus.
[58] Furthermore, it is telling that when Ms S[...] called up the loan of
R700,000.00 advanced to Ms V[...] R[...], the reason that Mr V[...] R[...] gave for
refusing to agree to access the mortgage bond and to repay this was because
Ms V[...] R[...] had been acting unreasonably in refusing to permit hiring out of the
matrimonial home.
[59] Mr V[...] R[...] did not say that he refused to agree to the payment because
the amount was not a loan at all but rather was a gift. The clear import of his
evidence in this regard was that, had Ms V[...] R[...] acted more reasonably, he
would have considered accessing the mortgage bond to repay the R700,000.00.
[60] It makes no sense that Mr V[...] R[...] would be given a gift of R800,000.00
whilst Ms V[...] R[...], being the S[...]s' daughter, would be required to repay the
amounts advanced to her.
[61] Mr V[...] R[...]'s further explanations for the "donation" was that he was
being rewarded for staying in post and feeding information to the S[...]s so that
they could determine what further amounts were due to them arising out of the
sale of the shares in G[...] W[...].
[62] This version, however, is inconsistent with the undisputed evidence that,
by mid-2020, it had been clear that G[...] W[...] would not meet its targets
because of the effect of the Covid pandemic and further that no further payments
were received. In any event, if the payment was some form of reward for Mr V[...]
R[...]'s loyalty, it does not make sense that it was paid in November 2021, well
over a year after he left G[...] W[...] and set up his own practice – and where no
further payments had been made to the S[...]s.
[63] I cannot ignore that Mr V[...] R[...] provided what appear to be false
instructions to justify the "donation", being the largesse handed out to members
of the extended S[...] family. These instructions were provided for a specific
purpose, which was to place the “donation” in context and to create the
impression that the payment was one of many from the same source and for the
same reason, being the S[...]s' generosity. If there was truth to these instructions,
no doubt Mr V[...] R[...] would have testified about them during examination in
chief, and he did not.
[64] In the absence of any objective evidence supporting Mr V[...] R[...]'s
version and his clear attempt to mis-characterise the true facts to advance his
version, I do not consider his version to be reliable and credible.
[65] Mr V[...] R[...] was not an impressive witness. Throughout his evidence, he
sought to create an impression of a man buffeted by events, who had no say in
anything and was simply a traveller, not only in his professional life, but his
personal life as well. According to Mr V[...] R[...], Ms V[...] R[...] did not even
discuss her intentions not to return to G[...] W[...] after the birth of their child and
arising out of complications from the birth. I do not find this to be credible.
[66] I cannot ignore that Mr V[...] R[...] did not testify in line with several
instructions that he gave his counsel and which were put during cross
examination of Ms S[...]. One would have thought that if in fact Mr V[...] R[...] had
been compelled to marry Ms V[...] R[...] for reasons somehow of confidentiality
within the family and its financial affairs, that he would have testified about this.
He did not do so. As stated above, his attempted mischaracterisation of the true
facts in respect of the wider S[...] family were demonstrative of a party who was
seeking to create a version to justify his defence.
[67] Mr V[...] R[...]'s explanation for why the transaction which was described
as a loan was not a loan is not credible, for the reasons set out above. I am not
prepared to accept, without more, that both he and Ms S[...] chose to involve
themselves in a potential fraud against the fiscus by intentionally creating
misleading documents. There is simply no evidence that the transaction was
simulated and the suggestion that it was is also inconsistent with the S[...]s’
previous conduct not only in advancing loans but requiring them to be repaid.
[68] Mr V[...] R[...]’s credibility is further diminished when one considers the
alternative claims advanced in the Third Party Notice. He sought orders declaring
that if I found the amount to be a loan, then he and Ms V[...] R[...] were not equal
co-owners of the immovable property that they owned but rather that his share to
the property was 50% plus R800,000.00 and Ms V[...] R[...]'s share was 50% less
R800,000.00 because Mr V[...] R[...] advanced the full amount to the mortgage
bond account.
[69] Mr V[...] R[...] knew that R700,000.00 had been paid into that account in
2020, to his benefit as well. He knew that Ms V[...] R[...] had paid the deposit on
the property. Yet, he opportunistically sought to manufacture an advantageous
fallback position that was based on a false premise, to deprive Ms V[...] R[...] of
what was due to her.
[70] Both Ms S[...] and Ms V[...] R[...] were subjected to searching
cross-examination and their evidence emerged intact, consistent with the
objective documentary evidence.
[71] I find it to be credible and in line with the authorities set out above that Mr
and Ms S[...] would not simply give money to their daughter and son-in-law, even
if they were able to do so. Mr and Ms V[...] R[...] were not only adults, but parents
of children. Even if repayment terms were generous and no or little interest was
charged, the view that there are at least had to be the prospect of the repayment
of funds and that Mr and Ms V[...] R[...] ultimately were accountable for their
lifestyle and choices not only makes sense but, again, is consistent with the
objective, documentary evidence.
[72] If Mr and Ms S[...] were not prepared to give money to Ms V[...] R[...] for
her caesarean section, it seems to me to be logical that they would not simply
donate R800,000.00 to their son-in-law. This is why both the proof of payment
and the email referred to a "loan" because that is exactly what the transaction
was and was consistent with the S[...]s’ previous conduct.
[73] Much of the cross-examination of Ms S[...] and Ms V[...] R[...] and the
evidence of Mr V[...] R[...] related to events that occurred after the disputed
transaction, and which surrounded the breakdown in the V[...] R[...]’ marriage. It
was suggested that the S[...]s had demanded repayment of the R800,000.00 to
punish Mr V[...] R[...] and to cripple him financially ahead of the contested
divorce.
[74] Whilst this evidence generated much heat, it did not create light:
regardless of whether the S[...]s acted magnanimously or cynically in demanding
repayment at the end of 2023, the only real question is whether the amount was
advanced as a loan or a donation in 2021.
[75] If a loan was advanced in 2021, which was repayable on demand, the
S[...]s were entitled to demand repayment and it is not for this Court to criticise
the timing or reason for that demand. The sole focus of this case is the disputed
transaction in November 2021.
[76] I am satisfied that Ms S[...] has discharged the onus resting upon her to
demonstrate that the payment of R800,000.00 to Mr V[...] R[...] in November
2021, was a loan, repayable on demand. I reject Mr V[...] R[...]'s version that the
payment was a donation as inconsistent with the objective facts, not credible or
reliable and improbable. To quote Rock Foundation, Mr V[...] R[...] has not
satisfied me that “there is a real intention, definitely ascertainable, which differs
from the simulated intention” or that there was “some unexpressed agreement or
tacit understanding between the parties that is not borne out by the terms of the
agreement or some secret understanding between them”.
[77] I do not accept that the loan was made to Mr and Ms V[...] R[...] jointly.
Firstly, it was not Mr V[...] R[...]'s case that the monies advanced to Ms V[...] R[...]
in 2020 were a loan to him and his wife jointly in circumstances where those
funds were paid to Ms V[...] R[...].
[78] I accept the evidence of Ms S[...] that if it was intended that the loan be a
joint one, she would have paid the amounts to her daughter and would not have
needed to request Mr V[...] R[...] 's bank account details in order to make the
payment to him.
[79] Mr and Ms V[...] R[...] are married out of community of property and in the
same way that Ms V[...] R[...] was responsible for repayment of loans advanced
to her (for, among other things, her caesarean section) Mr V[...] R[...] likewise
was responsible for repayment of the amounts advanced to him.
[80] That both parties chose to deposit the loan monies in their joint mortgage
bond account to their mutual benefit does not change either the nature of the
transaction or the identity of the debtor.
[81] I am satisfied that Ms S[...] has discharged the onus of proving that the
R800,000.00 was advanced as a loan to Mr V[...] R[...] alone, repayable by him
on demand.
[82] There is no reason why costs should not follow the result in the
circumstances where Ms S[...] has been successful in her claim. Mr V[...] R[...]’s
claim against Ms V[...] R[...] has failed, and the same result should ensue. Given
the nature of the matter, I am satisfied that costs should be taxed on Scale B.
Orders granted
[83] I grant the following orders:
1. Judgment is granted in favour of the plaintiff and against the defendant for:
a) Payment in the sum of R800,000.00.
b) Interest on the sum of R800,000 at the rate of 11.75% per annum calculated from
24 November 2023 to date of final payment.
c) Costs of suit, including all reserved costs, to be taxed on Scale B.
2. The defendant is directed to pay the third party’s costs of suit, including any
reserved costs, on Scale B.
___________________________
SHAPIRO AJ
APPEARANCES
Date Heard : 24 to 26 November and 4 December 2025
Date Delivered : 16 February 2026
Counsel for the Plaintiff : D Aldworth
Instructed by : Janssens & Associates Attorneys
care of M B Pederson & Associates
10 Sevenfold, 10 Derby Place
Derby Downs Office Park, Westville, Durban
Email: janssens@mweb.co.za
Counsel for the Defendant : S Clarence
Instructed by : Jenna Jones Attorneys
care of Thorpe & Hands
88 Mahatma Ghandi Road, Point, Durban
Email: jenna@jennajonesattorneys.co.za