Cloete v Maritz (6222/2010, 16433/2012) [2014] ZAWCHC 108 (13 June 2014)

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[2014] ZAWCHC 108
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Cloete v Maritz (6222/2010, 16433/2012) [2014] ZAWCHC 108 (13 June 2014)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
[Reportable]
CASE
NO: 6222/2010 & 16433/2012
DATE:
13 JUNE 2014
In
the matter between:
ELSIE
SOPHIA
CLOETE
...........................................................................
Plaintiff
And
ANDRIES
WILHELMUS JACOBUS
MARITZ
.......................................
Defendant
JUDGMENT
DELIVERED ON 13 JUNE 2014
HENNEY,
J:
Introduction
[1]
The Plaintiff’s claim, as set out in the Particulars of Claim,
is based on a breach of promise to marry. Having been in
a
relationship with each other, the parties on or about 10 March 1998
orally agreed to marry each other within a reasonable time
after such
date. As a result of this, the parties became engaged to each other
in February 1999. The Plaintiff alleges that on
24 April and 7 May
2009 the Defendant repudiated the said agreement by orally refusing
to marry her. It is alleged that he did
so by informing her that “he
did not want to see her again” and that he “had somebody
new” in his life.
She alleged that the repudiation was wrongful
and unlawful and the Defendant had acted
animo
iniuriandi
by conveying this to her in foul and contumelious language and by
conveying it to another female one Elize Steenkamp with whom she

cohabited. This repudiation, she alleges, was preceded by lengthy
repetitive, insulting, denigrating and humiliating statements
made in
foul language to her.
[2]
As a result of this the Plaintiff on 26 March 2010 issued Summons
against the Defendant. The Plaintiff claims payment, on the
basis of
breach of contract, of an amount of R26000,00, being monies that she
initially donated to him in contemplation of the
marriage between
them that was utilized to enable him to acquire a hair salon
respectively on 12 August 1994 for an amount of R16000,00
(R10000,00
cash and R6000,00 stock), and February 1996 when she donated a
further R10000,00. Claim 2 is for the payment of the
amount of
R6065000,00 for the loss of financial benefits of the marriage. Claim
3 is for the payment of the amount of R250000,00
for the contumacious
breach of promise to marry.
[3]
Thereafter on 16 August 2012 the Plaintiff amended her Particulars of
Claim. In the main, she claims the existence of a universal

partnership between the parties, one that had been tacitly entered
into between the parties during or about August 1994.
[4]
The Plaintiff therefore in her Particulars of Claim requested an
order declaring her to have a 50% share of the value of the
assets in
the universal partnership.
[5]
As an alternative to the claim that there existed a universal
partnership, she claims the repayment of the sum of R26000,00
which
was donated by her to the Defendant to acquire two hair salons, such
claims being based on similar facts to those alleged
in the initial
claim 1 under paragraph 2 above.
[6]
In terms of such amended Particulars of Claim, she further claims the
payment of an amount of R25000,00 for damages for breach
of promise.
She reduced this claim from the initial claim of R250000,00.
[7]
There were further claims in order to facilitate the Plaintiff’s
claim of the half-share of the universal partnership
that the
Defendant render a full account supported by vouchers and or
documents of the nature of the universal partnership from
August 1994
to August 2010 and an order for the debatement of such an account.
The parties agreed that these claims be adjudicated
together with the
claim that there was a universal partnership and the claim for breach
of promise (See further paragraphs 101
– 107 infra).
Defendant’s
Claim in Reconvention
[8]
The Defendant claims that he is the owner of the property known as 8
Silverboom Avenue, Plattekloof 3, Western Cape Province
(“Plattekloof
property”), and that the Plaintiff has unlawfully occupied the
property since April 2009. Notwithstanding
the Defendant’s
demand that the Plaintiff vacate, she is still in unlawful occupation
of the property.
[9]
As a result of her unlawful occupation, the Defendant claims he has
suffered damages in that he was unable to tender the property
for
lease to third parties. The fair and reasonable market related
monthly rental of the property is R20000,00. He claimed damages

totalling R420000,00, being the amount of 21 months unlawful
occupation. In addition to this a further payment in the amount of

R20000,00 per month pro-rata from the date of claim to the date of
Plaintiff vacating the property.
[10]
Defendant’s Plea
The
Defendant denied that there was a legally enforceable engagement. He
denied that there was a universal partnership agreement
entered into
between the parties.He additionally contended that on 22 March 2009,
the Plaintiff repudiated the “agreement”
to marry which
repudiation he accepted, alternatively, he pleads that the parties
terminated the agreement by mutual consent. As
a further alternative
he pleads that should it be found that he had repudiated the
“agreement” he would aver that he
had just cause in
terminating the “agreement”, namely, the Plaintiff’s
vacation of the common house on several
occasions without good reason
to do so. Further, she had repudiated the “agreement” on
various occasions prior to 22
March 2009 without just cause and she
often acted in an irrational manner.
[11]
Special Plea
The
Defendant raised a Special Plea to the claim that there was a
universal partnership that existed between the parties. He pleaded

that when the Plaintiff served her amended Particulars of Claim on 16
August 2012, when she introduced the alleged universal partnership
as
a new cause of action, such claim had prescribed because a period of
more than 3 years had lapsed since the claim arose. The
Plaintiff’s
claim based on the universal partnership arises on the termination of
the partnership agreement. Such partnership
(if any) was terminated
in conjunction with the termination of the engagement and or their
romantic relationship, whether on 22
March 2009 or alternatively
during April 2009 or during May 2009.
[12]
The Evidence
The Plaintiff’s
Evidence
The
Plaintiff testified in this matter. The Plaintiff testified that she
and the Defendant became involved in a romantic relationship
that
lasted for 15 years as from 1994 to 2009.
[13]
She started to live with him in Oranjemundt Namibia in August 1994.
Shortly thereafter they bought a hair salon known as Hairline
Unisex
Hair Salon though the Defendant bought it in his name. The Hair Salon
was bought for an amount of N$16000. In order for
them to raise the
funds, the Plaintiff applied for a loan of N$10000 at the First
National Bank. The Defendant contributed the
other N$6 000 from
his own funds. Before she moved to Oranjemundt she had her own hair
salon in Karasburg and she used some
of the stock of that salon in
the new salon they acquired.
[14]
From the moment the salon opened she was solely responsible for the
running thereof.  The Plaintiff was also a signatory
to the bank
account of the hair salon. She drew a salary from the business and
the rest of the income of the business was used
to buy stock and
equipment. At that stage the Defendant was in the full time
employment of a mining company (CDM). At that stage
because
Oranjemundt was a protected area which had restricted access, she
could only through the Defendant apply to CDM to give
permission for
her to take up residence with him. When he made such an application
he referred to the Plaintiff as his business
partner.
[15]
Later in 1994 the Defendant acquired the opportunity to purchase his
ailing father’s farm known as, portion Narudas.
He sought her
advice whether he should buy the farm, whereupon she advised him that
it would be a very good business opportunity
for him. She further
agreed that she would go and stay with him on the farm. They used the
proceeds generated in the salon in the
farming business. The
Defendant was still in full time employment at CDM at this stage and
his brother managed the farm on his
behalf.
[16]
The Plaintiff further testified that around this time they
experienced problems in their relationship and she left the Defendant

and in a letter dated 18 December 1995 she made a decision to sell
her interests in the Hairline Salon. She, however, changed her
mind
and decided against this because the Defendant requested her to come
back.
[17]
They acquired another hair salon on 17 February 1996. This business
was known as Good Looks Hair Salon which they later renamed
Visions
Hair Salon. This hair salon was acquired for N$13000. She once again
borrowed N$10000 from First National Bank. They opened
a bank account
in the name of the new Salon and both of them had signing rights on
the bank account. According to her they were
partners in this
business. In terms of a document to open a banking account they
declared that they were partners in Vision Hair
Salon (page 33 and 34
Plaintiff’s bundle Annexure A1).
[18]
On 2 June 1997 they sold the first hair salon business Hairline for a
price of N$19354,56. The proceeds of the sale of this
business were
used in the farm. At that stage the Defendant was still employed on a
fulltime basis whilst the Plaintiff was managing
and running the
Visions Hair Salon.
[19]
The next business that was acquired by them was Black Diamond
Clothing on 8 March 1999. Her attention was drawn to this after
a
client of hers informed her about the decision to sell the
business.The Plaintiff thereafter told the Defendant that according

to her it would be a very good business opportunity, because this
business was one of only two clothing business in Oranjemundt.
They
then decided to buy this business. After they acquired the business
the Plaintiff was responsible for the running and the
managing
thereof. In evidence she recognised certain documents as orders she
placed for clothing they acquired for Black Diamond
Clothing Store
(Plaintiff Exhibit A1 page 54(1), 54(2), 54(3)). This business grew
bigger and expanded. There was one other person
who was employed in
this business. At that stage the Plaintiff testified that she was
still also responsible for the managing of
Visions Hair Salon. The
Plaintiff testified that she had to supervise and monitor the
clothing business, by regularly visiting
the business to see that
everything was in order. She had to communicate with the suppliers.
In this regard, she provided some
documentary proof of how she did
this (Plaintiff’s bundle Exhibit A1 page 46). At the same time,
she was also busy on the
farm.
[20]
During 1999 she became aware of a business property known as Penny
Farthing that was on the market. She also informed the Defendant
of
this, and they discussed the viability of acquiring this property
because they needed some space for their clothing business,
Black
Diamond, which they intended expanding. On 1 November 1999 they
purchased the Penny Farthing property for an amount of N$255 000,00.

They thereafter moved the Black Diamond clothing business to the
Penny Farthing building.  The rest of the Penny Farthing

building was leased to a business known as Biltong Bar as well as
Telecom.  This generated a further income for them.
[21]
In April 1999 they acquired another business, a take-away business
known as Amigo’s.  Amigo’s was bought for
N$75 000.
This they acquired after a client of the Plaintiff, to whom this
business belonged, informed her that they
intended selling the
business, because they wanted to move.  According to the
Plaintiff she went to have a look at the business.
She observed
cooling and freezing facilities that were in the backyard of the
business which the Defendant could use to store his
carcasses of
livestock he sold from his farming business. Thereafter she discussed
this business proposition with the Defendant
and they decided to
purchase this business.  The Defendant informed her that she has
to assume full responsibility for this
business.  This she did
by managing it.  She had to purchase all the stock and she had
to attend to the problems of the
employees.
[22]
At that stage they became very busy.  The Defendant, who was
still working on a full time
basis, suggested that Visions Hair Salon
be sold.  The business was sold in January 2000 for an amount of
N$27 000.
This decision was made in order for the
Plaintiff to give more attention to Black Diamond Clothing, Penny
Farthing, Amigo’s
Take-Aways and the farm.
[23]
In 2000 the Defendant resigned from his position at the mine.
At that stage the Take-Away business and Black Diamond
Clothing were
doing very well.  In October 2000 they concluded an antenuptial
contract and the Defendant asked the Plaintiff
to marry her, to which
she agreed, to marry in December of that year, which ultimately did
not occur because the Defendant continuously
postponed it.
[24]
In August 2001 they decided to purchase a house in Plattekloof in
Cape Town.  They bought the property as an investment.

They wanted to rent out the property as a guest house.  At that
stage they came down from Namibia to Cape Town on numerous
times to
buy some stock for Black Diamond Clothing.  During these times
they used the property for accommodation.
[25]
Although the house was registered in the Defendant’s name, the
Defendant said the house was hers.  She also said
the cars were
also hers.  The understanding was that the house was their
common property, where they would retire together
one day when older,
so they could be near doctors for health reasons.  She was also
involved in the development and building
to completion of the
Plattekloof property, that was partially completed when they
purchased it.
[26]
In 2002 they bought another clothing shop, Ritz Clothing, in Rosh
Pinah, a mining town near Oranjemundt.  The Plaintiff
was
responsible for the layout, and the ordering of stock from suppliers
for this shop, and she further assisted the Defendant
with the
pricing and tagging of the clothes sold there.  She and the
Defendant established this business together and were
closely
involved in setting it up.
[27]
In April 2003 they sold Amigo’s Take-Aways for N$124 000.
These proceeds were also ploughed into the other
businesses.  In
July 2004 they bought two shoe stores in Hermanus. These businesses
were purchased for R450 000,00.
The funds that were
utilized to acquire these two stores were raised from money which
accumulated over the years from the other
businesses.   It
was decided that it would be to their advantage to move to the house
they had in Plattekloof in order
for them to control from there the
shoe stores and all the other business, as well as the farm. The
Plaintiff was thereafter requested
by the Defendant to assist in
setting up and taking over these businesses.  She made notes
about all the tasks she had to
perform, which she kept (See Plaintiff
bundle Exhibit A1 page 101, 102, 106).  Once again she was
involved in acquiring stock
for these shops.  He gave her
instructions that she had to carry out.  She also had to travel
on her own from Oranjemundt
to Hermanus to attend to the affairs of
the two shoe stores on behalf of the Defendant.
[28]
After they moved to Cape Town they stayed here in Plattekloof until
2007.  They would travel between Cape Town and Oranjemundt
on a
monthly basis.  As a result of their moving back to Cape Town,
it was difficult for her as a citizen of South Africa
to stay in
Namibia, because she could only stay there for a period of three
months at a time.
[29]
Both the shoe stores in Hermanus were closed in June 2007.  This
decision was taken by both the Plaintiff and the Defendant.
Before
doing this, the Defendant sought the Plaintiff’s advice.
The reason for taking this decision was because
they wanted to
purchase another farm.  At that stage they decided to move back
to the farm in Narudas-Suid.  From there
they would manage Black
Diamond Clothing as well as Ritz Clothing in Rosh Pinah.  The
shoe stores in Hermanus were sold for
R280 000,00 which included
the stock.  This money was paid into the bank account of the
Defendant and was later used
to expand their farming activities.
[30]
By 2005 the farm as well as the Penny Farthing building were paid
off.  In order to extend the farming business they leased
two
other farms in 2007.  As a result of this they decided to scale
down their business interests and to concentrate more
on farming.
During this period, they still operated the two clothing stores and
the Plaintiff was still involved in the management
and day to day
running thereof with the Defendant.  On the Narudas-Suid farm
she had her responsibilities as house wife and
in addition to that
she assisted the Defendant with office duties.  At that stage
the office from which they operated all
their businesses was
relocated to the farm.  On the farm she also helped to assist
the workers and dealt with other tasks
that might have needed her
attention.
[31]
In March 2009 they again came back to Cape Town to check up on the
property in Plattekloof.  It was during this time,
on 23 March
2009, when the Defendant told her that he was not interested in
continuing their relationship anymore.  On 25
March 2009 two
days thereafter he packed his bags and told her that he was going
back to Namibia.  The Plaintiff testified
that he asked her
whether she was going with whereupon she answered that she could only
stay in Namibia for 29 days and that he
had to tell her when she
would be returning to South Africa.  He did not answer, got into
his vehicle and drove off.  He
never previously told her that he
was leaving her; the issue was never discussed with her.
[32]
The Plaintiff further testified that after a while she contacted him
by telephone and he told her that he was not interested
in her
anymore and he had someone else in his life.  When he told her
this, she became hysterical and she became very sad.
She
pleaded with him to reconsider his decision.  She told him that
they had achieved a lot and they had acquired a lot of
possessions.
She testified that she told him that she had nothing but despite
this, no provision was made for her.
[33]
She further testified that at a later stage she contacted him again
and told him that she wanted to go to him on the farm,
but he told
her she was not welcome.  During this time, she stayed in the
Plattekloof house and he told her that they should
think about
converting the house into a guest house.  They also discussed
the possibility of making the place available as
a guest house for
the 2010 soccer world cup in order for her to generate an income.
During this period she was in constant
contact with him regarding
this issue. In a letter dated 3 June 2009 (Plaintiff bundle A2 page
2) she addressed among other things
a salary that the Defendant had
paid into her banking account, which he paid until February 2010.
In this letter she also
informed him about persons and businesses
that wanted to contact him regarding payments that had to be made or
arrangements that
had to be made with regard to the businesses in
Namibia. In this letter she also refers to everything that they had
accumulated
and built together through the years and states that she
did not own anything and was totally dependent on him.
[34]
For the period May - July 2009, February 2010 and 29 June 2009, she
on a regular basis, on the instructions of the Defendant,
made
enquiries to various authorities, and sources on how to convert the
Plattekloof house into a guest house for the 2010 World
Cup. During
this period she had regular contact with the Defendant to inform him
about the progress and what she was required to
do.  During this
time there was also regular telephone contact between her and the
Defendant.  According to the Plaintiff
during this time the
Defendant made regular payments towards the maintenance and upkeep of
the Plattekloof property on her request.
[35]
The Plaintiff testified that in a recorded telephone conversation
dated 24 October 2009 the Defendant made the remark that
….
“
Ons het die afgelope paar jaar ‘n m…se klomp
geld bymekaar gemaak
”, to which she replied “
Daar
is ‘n klomp besittings bymekaar gemaak, eiendomme en goed
Dries, wat ek niks van het, ek het nie eers ‘n kar nie,
ek het
nie geld nie, ek het nie eers ‘n heenkome as jy nie vir my
toelaat om in die huis te woon nie, het ek mos nou net
mooi niks.
”
[36]
The Defendant, in a note to the Plaintiff dated 16 September 2007,
explains what he expects from a wife (Exhibit A4 on page
16):
“
om
in die algemeen by my te staan met die besighede wanneer die tyd
toelaat, of wanneer ek haar hulp benodig om ‘n spesifieke
taak
gedoen te kry.
”
In
the same note he states under paragraph 5:
“
Nie
ons besighede te benadeel nie deur onmoontlike druk op my te plaas
nie (ek kan nie na 5 winkels, plase, huishoudings, tuine
en kinders
omsien en nog saam met Andries
[1]
vakansie hou nie
.”
[37]
The Plaintiff testified that when the Defendant referred to “
ons
besighede
” it was the understanding that it was their
businesses.  It included the farm as well as the house in
Plattekloof.
[38]
At some stage in 2009 on the instructions of her erstwhile attorney
Mr Pitman, the Plaintiff compiled a document (See Plaintiff’s

bundle Annexure A1 page 125) indicating all the assets they had
acquired including the farm.  This document also contained
the
value of the livestock on the farm.  The value of the farm
according to her was N$2 065 459,00.  The price
of the
farm was determined according to its size. These valuations were
given to her by people who had knowledge of the worth of
such
properties.
[39]
During cross-examination, she conceded that she did not assist in
calculating the wages of the farm workers but she assisted
in handing
them out to them.  She further conceded that the Defendant was
responsible for keeping the records of the cattle
on the farm and for
tending the cattle.  She also conceded that the Defendant was
responsible for keeping and attending to
all the records of the
farming business.
[40]
According to her evidence they worked together and attended to the
various duties on the farm which included assisting the
workers with
social problems and certain administrative tasks. She further
testified that during the times when the Defendant was
not present
she had to supervise the farming activities.  She further
testified that she tended to all the household functions
on the
farm.  In cross-examination she further conceded that she was
not responsible for the management of the farm but would
assist
therein on the instructions of the Defendant.
[41]
The Plaintiff further testified in cross-examination that even though
there was an antenuptial contract which was concluded
before their
intended marriage, the Defendant assured her that she need not worry
about it because he attended to her needs in
his will.
According to her understanding of what he told her, it was their
businesses and everything would be for the benefit
of both of them
and not for his sole benefit.
[42]
The Plaintiff further testified, when she was referred to a letter
(Defendant’s Exhibit B25) in cross-examination, that
on 29
December 2000 she left the Defendant and did not want to proceed to
marry him at that stage because he physically and verbally
abused her
at that stage.  Although she did not want to get married to him,
she did not break off the engagement when she
addressed the letter
dated 27 December 2000 to him.  She never reported any of the
assaults or physical abuse to the police
because she did not want to
place the Defendant in a bad light and she wanted to protect his
reputation in the town of Oranjemundt
where he was a well-known
person.  She further stated she wanted to protect him because
she felt pity towards him.
[43]
She still had the engagement ring.  She further testified that
even though the Defendant abused her, she still wanted
to be with him
because she loved him very much and she wanted to spend the rest of
her life with him.  They had achieved a
lot.
[44]
She further testified that his references to “
ons goed
”,
and to their planning a life together, related to their businesses,
the house and the cars. According to her it was not
something he
would have said to an ordinary worker, and with whom he had no plans
to share a life together.
[45]
She conceded that even though she did not always contribute
financially towards the businesses, she contributed by physically

managing, controlling and assisting in the businesses.  She
further testified that she was not aware that he sold his properties

in Mossel Bay and De Kelders to raise the necessary capital to
purchase the property in Plattekloof.
[46]
She further testified that after she left the Defendant in November
2007, she only returned to him after he promised that he
would not
abuse her and that he would seek help for his behaviour towards her.
[47]
She further testified that in or about 24 June 2010 the Defendant
visited her in Cape Town to discuss the renting of the Plattekloof

property with someone from a letting agency.  It was during this
time that the Defendant gave her instructions to investigate
the
possibility of renting out the house.  She denied an allegation
by the Defendant that the reason why she was instructed
to
investigate the possibility of renting out the Plattekloof property
was not for the purposes of the business of a universal
partnership
but for her to earn an income.
[48]
She further denied that she informed the Defendant towards the middle
of March 2009 that she did not intend returning with
him to Namibia.
She denied that the Defendant told her that he would be taking over
the management of all three farms as
from May 2009.
[49]
She further denied in cross-examination that the relationship was
terminated on 22 March 2009.  She testified that even
though the
Defendant informed her that he wanted to end the relationship, she
thought it was once again a situation as happened
in the past, where
they would reconcile.  She further testified that according to
her, their relationship ended on 5 December
2009, when the Defendant
married another woman.  According to her understanding their
business relationship never stopped.
The Plaintiff testified
that the Defendant told her before he got married to the other woman
that should the relationship not work
out, there would be a chance
for them to reconcile.
[50]
She further testified that an endowment policy of R21 000,00 had
been paid out to her.  During this time they had
a
relationship.  She testified that a further endowment policy of
R54 156,00 had also been paid out to her, which she
invested.
She transferred the money to her sister from when she borrowed money
to cover her legal costs.
[51]
She further testified that she lent an amount of R30 000,00 to
her children.  The Plaintiff further testified that
during the
last 5 years she has been unable to find a suitable job, because she
does not have the necessary qualifications and
she is not very young,
being almost at retirement age.
[52]
Defendant’s Evidence
The
Defendant testified that he met the Plaintiff on 30 April 1994 at a
farmer’s association function.  About 3 to 4
months
thereafter she contacted him and informed him that there was a Hair
Salon that was for sale in Oranjemundt.  She struggled
to get
accommodation in the area because Oranjemundt was a restricted area
and not anyone could get access to the area.  She
requested him
to assist her in acquiring the Hair Salon.  He later found out
from his cousin that the Plaintiff had already
made inquiries about
the Salon in June of that year.  He then offered to help her and
paid the purchase price of the Salon.
The reason for this was
because it was required by (Namdeb) De Beers that the salon be
registered in his name because he was a
resident of the area.
[53]
On the 8 August 1994 the Plaintiff took up employment at the Salon.
At that stage the Defendant was still in the employment
of De Beers
and earned a monthly salary package of approximately R30 000,00.
[54]
The Plaintiff worked in the salon and earned a salary.  After
working there for more than a month the Salon began to be
a
profitable business.  The Plaintiff indicated that she wanted an
increase in her salary.  He however indicated to her
that she
could buy a share in the business.  The Defendant testified that
he invested R16 000,00 in the business. The
Plaintiff as a
result of this offer invested R10 000,00 in the business.
This made her a 50% shareholder and entitled
her to a share in 50% of
the profits.
[55]
In 1996 they acquired a new hair salon named Visions.  He
assisted in setting up this salon and invested further capital

therein.  These two hair salons were in operation at the same
time.  The Plaintiff managed Visions, whilst one of the
workers
took care of Hairline.  This continued until 1999 and the first
salon, Hairlines, was eventually sold in 2000.
The Plaintiff,
right from the onset, earned a salary of R2 265,00 per month.
There were other people who were also employed
with the Plaintiff at
Visions.
[56]
In the meantime, during the period 1993 – 1994 the Defendant
bought the farm from his father for R300 000,00.
Due to
the fact that he could not be promoted any further at his place of
employment in Namibia, he later decided to concentrate
on acquiring
private businesses in Oranjemundt.  It is for this reason that
he first purchased Black Diamond Clothing in March
1999 and a month
thereafter he purchased Amigo’s Take-Aways.
[57]
Whilst this happened he remained in full time employment until the
businesses got off the ground.  During this time he
found it
extremely difficult to give attention to all the businesses as well
as hold a permanent job.  The Plaintiff’s
salon did not
perform very well in this time and it barely managed to cover its
expenses.  During the five year period since
she came from
Karasburg, she invested an amount of R26 000, 00 which included
the value of the stock of her Karasburg salon
to acquire a share in
the business.  The business however did not perform very well;
only on one occasion it managed
to declare a profit.  A dividend
in the amount between of R2 000, 00 – R3 000, 00 was
paid out to each of
them.  During the first five years of her
being employed in Oranjemundt she earned an amount of R180 000,00
representing
the accumulation of her salary over such period.
His intention right from the beginning was to assist her in acquiring
the
salon in order to give her an opportunity to earn her own
salary.  During this five year period he only managed to
retrieve
the capital amount he had put into the business.
[58]
In addition to the R180 000,00 she received, she also received
free accommodation, meals plus the free use of the telephone.

This all she received in return for an investment of R26 000,00
in the business.  When the Defendant purchased the take-away

restaurant in 1999 he proposed to the Plaintiff that she would earn a
better income if she sold the salons and work in the take-away.

As a result of this, her salary was increased from R2 265,00 to
R4 000,00 per month.  Early in 2000 during his leave
period
he discovered a loss of R40 000,00 that was incurred in the
take-away.  It was at that stage that he decided to
resign from
his job in order to give attention to his businesses and the farm.
In the first half of 2000 the salon was sold.
[59]
The Plaintiff’s principal task between 1999 to 2003 was to
ensure that the supervisor and other workers fulfilled their
daily
duties in the take-away.  All her attention was therefore
concentrated on the take-away business.  The Plaintiff
since the
end of 1995, at least once a year, sometimes twice a year, abandoned
the salon and did the same when she was involved
in the take-aways.
[60]
On 31 March 2002 she resigned from Amigo’s take-aways.
The continued absence of the Plaintiff from the business
created a
problem for him especially during the busier times during the
November – December period, since he also had to
attend to the
business in Rosh Pinah, Ritz Clothing.  As a result of her
continued and sporadic absence he had to sell Amigo
Take-Aways to the
Plaintiff’s son in May 2003.  The Plaintiff spent most of
her time at the take-aways and was only
involved in Black Diamond
Clothing when she had to do some stocktaking.  Black Diamond
Clothing had a manageress.  The
Plaintiff did not spend much
time at the other businesses.
[61]
During October 2000 they concluded an antenuptial contract with the
intention to get married in December of that same year.
The
Defendant further testified that he left it to the Plaintiff to make
all the arrangements for the wedding as he was extremely
busy running
the businesses.  As he put it “
December had come and
gone
”, and the Plaintiff had never gave him any feedback
about any of the wedding arrangements.
[62]
On 26 December 2000 as a result of a break-in at the take-aways he
went to Oranjemundt and when he returned to the farm on
28 December
2000 the Plaintiff had left.  She left him a letter wherein she
wished him well for the future.  Whilst this
shocked him he was
also used to this kind of behaviour.  She used to do this on a
regular basis.  During the times that
she left him, especially
during the December holidays when his son visited him, he found it
very difficult to cope, especially
when he had to tend to the
domestic responsibilities in and around the house at the farm.
[63]
The Defendant testified that the Plaintiff’s contribution in
Ritz Clothing in Rosh Pinah was very limited.  Most
of the time
she was busy in the take-aways.  He was the one who was
responsible for the layout, the planning and the placing
of stock in
this shop.  He further testified that after they sold Amigo’s,
they bought two shoe stores in Hermanus.
These two businesses
did not do too well.  After an investigation, and because of the
fact that these two businesses did not
make any profit, he decided to
close them down.  During the time they went to Hermanus to
evaluate these two businesses, the
Plaintiff did not in any way
assist him, instead she went to do some shopping in the Hermanus
area.
[64]
The Defendant further testified that towards the end of 2007 he was
offered to lease two farms adjacent to his from his cousin.
His
cousin then offered to manage the farms on his behalf.  To lease
such properties he utilized a portion of the loan that
was granted to
him by his mother during the period 2004 to 2005.  This loan
also assisted him in acquiring the stock for the
shoe stores in
Hermanus.  When the two shoe stores were sold, the proceeds were
used to acquire livestock for the farm.
He further used another
R180 000,00, that was meant for a student loan for his son, to
buy some livestock for the farm.
After the sale of the shoe
stores in July 2007, he could spend more time in the farm in
Namibia.  During this time his office
was also transferred to
the farm.  He however still came to Cape Town on a regular basis
to purchase some stock for his businesses.
[65]
The relationship between him and his cousin, who managed his farms
for him, soured.  The Defendant testified he had to
spend some
more time on the farms to supervise the operations.  This
continued until March 2009.  During the period January
–
February 2009, his cousin then informed him that he was not able to
manage the farms anymore.  The Defendant testified
that this
meant that he had to manage the farm and he also had to see to its
day-to-day running of the farms.  Apart from
this the Defendant
testified he still had to see to the two businesses that were
situated in Rosh Pinah and Oranjemundt.
[66]
When in March 2009 he came to Cape Town, the Plaintiff was aware that
he had to assume and take over the responsibilities on
the farm.
The Plaintiff around 16 or 17 March 2009 informed him that she would
not be going back with him to Namibia.
This she did without
giving him any reasons for her decision except that her South African
passport did not permit her to go to
Namibia for a period of a year.
According to the Defendant, he and the Plaintiff agreed that they
should end their relationship
on 22 March 2009 when he told her that
he did not want to continue with the relationship.  There was no
argument or unhappiness
about it.  On 25 March 2009 he went back
to Namibia.  Currently the clothing shop in Oranjemundt is
barely in existence
and the stock is old stock.
[67]
When he uttered the words “
Ons het die afgelope paar jaar ‘n
m….. klomp geld bymekaar gemaak
”, it was understood
and quoted out of context by the Plaintiff.  According to him
they did not make a lot of money,
because he incurred a lot of
expenses.  The farm was bought for R300 000,00.  The
livestock on the farm was purchased
from the proceeds of the sale of
the shoe stores.  The capital value of the businesses increased,
but there was no increase
in the profits or proceeds.  Penny
Farthing was bought for about R225 000,00 and according to the
municipal valuation
it is now worth more than R1million.  The
increase in the value of the assets was as a result of the risks he
took to acquire
it.
[68]
The Defendant testified that during the last six years while they
were together, the Plaintiff gave particular attention to
the
household.  It is for this reason he needed her.  He needed
her to look after his house and his household.
He could not
have given all his attention to his businesses if he also had to deal
with the responsibilities of the household.
He also said that
he needed her to give attention to the household so that he could
expand his businesses.
[69]
He further testified that the loan that was granted to him by his
mother of R500 000,00 has not yet been paid off, he
was only
able to pay the interest and not the capital.  He further denied
as stated in the amended Particulars of Claim that
the relationship
was terminated between 24 April and 7 May 2009.  He denied that
during August 2009 they endeavoured to restore
their relationship as
alleged in the Particulars of Claim.  He further denied that a
commercial partnership came into existence
between them.  There
was no tacit universal partnership.
[70]
He further testified that he did make arrangements with the Plaintiff
regarding the renting out of the Plattekloof property
after the
termination of the relationship because he realised it would be very
difficult to remove her from the house and he needed
to generate
funds as a matter of urgency.  He also realised that the
Plaintiff needed an income.  That is why he created
an
opportunity for her to earn a salary should the house be rented out
for holiday accommodation.  She did not make use of
this
opportunity.  He was also not satisfied that she stayed in the
property because it would not have created a favourable
impression if
the house was rented out for holiday accommodation whilst someone was
staying there.
[71]
He further testified that he requested the Plaintiff on several
occasions to vacate the property since 2009.  The Plaintiff
even
knew before that he wanted to rent out the property and did not want
her to stay in the house.
[72] Evaluation
of Evidence
Before
the issues as set out in the pleadings can be determined a proper
evaluation of the evidence upon which the court has to
make findings
of fact and the law will now be dealt with.
[73]
The Plaintiff gave a clear and detailed account of the relationship
she had with the Defendant.  Her evidence was supported
and
corroborated by various documents that she kept over the years.
She gave a detailed account of how she became involved
with the
Defendant, how each and every business started and in what respects
she contributed to each and every business.
[74]
She came across as an honest and genuine person, who did not
contribute to and assist the Defendant purely to gain financially,

but because of her deep love, affection, admiration and loyalty she
had for him.  It was clear that it was never her intention
when
she entered into the relationship with the Defendant to gain
financially from it.  The impression that was created was
that
she was the submissive and caring partner who at all times acted in
the Defendant’s best interests.
[75]
She also did not exaggerate or embellish the role she played in each
of the businesses.  She readily conceded that the
Defendant also
worked hard to build up these businesses.  She also conceded
that she played a limited role in the farming
activities of the
Defendant, where her role was confined to attending to the household
and to a lesser extent she also assisted
with certain mundane tasks
like attending to the problems of the workers and to tasks he
requested her to perform.
[76]
Her version that she was involved in the building up of the
businesses which they acquired make sense because it is clear that

between the period 1994 to 2000 the Defendant was in the full-time
employment of Namdeb while she was busy working on a full time
basis
tending to the hairdressing salons, the two clothing stores, as well
as the take-aways.  This version is consistent
with the
probabilities.  The fact that the Plaintiff’s whole
existence revolved around the Defendant and his businesses
is evident
and is undisputed.
[77]
She performed these functions and tasks due to the intimate
relationship they were involved in and for the benefit of their

businesses, notwithstanding the abuse and lack of respect the
Defendant had for her.  This fact is clearly borne out by the

evidence regarding the communications between them either in the form
of the telephone calls, letters and sms’s exchanged
between
them.
[78]
The Defendant on the other hand tried to down play her involvement
and the contribution the Plaintiff made to the businesses.

After living with her for a period of 15 years he tried to diminish
her role to that of an ordinary worker, and not as a person
who made
an equal contribution in their businesses, let alone as an equal
partner.
[79]
When it was pointed out to the Defendant that he gave credence to the
allegation that they were involved in a universal partnership
through
the years when he stated in correspondence to her that … “
ons
het ‘n m….se klomp geld bymekaar gemaak oor die jare
”,
and when he frequently referred to “
ons goed
”, he
tried to explain this away by saying that such statements was taken
out of context or misunderstood by the Plaintiff.
However, the
Plaintiff’s position is strengthened by the Defendant’s
own evidence in court where he on more than one
occasion referred to
“
ons
” in relation to how they referred to the
businesses.  In his evidence-in-chief at page 450, line 10 –
15 he states
the following:
“
Nadat
Amigo’s Take Aways verkoop is, het
ons
die volgende besigheid wat
ons
– wat gekoop is, is twee skoen winkels hier in Hermanus
”.
On page 444 of his evidence-in-chief at line 5 – 15
he once again makes such a reference.
[80]
His further evidence that the Plaintiff frequently absented herself
from the businesses to such an extent that she did not
make any
meaningful contribution towards them, in my view, is an exaggeration
and is disingenuous.  I am of the view that
such evidence
constitutes an attempt to down play her role.  According to her
version she absented herself only on the occasions
when he verbally
and physically abused her.  The Defendant conveniently tried to
down play and mislead the court about this.
[81]
In my view, the Defendant could not successfully counter these
allegations, because the Plaintiff’s allegations of such
abuse
is evident from the many phone calls between them during November
2004, on 24 October 2009 and 29 October 2009, in which
he verbally
abused her by using vile and vulgar language towards her.  This
is an indication how he treated her with disrespect
and disdain.
The Plaintiff’s version as to the reasons for why she absented
herself is entirely plausible.
[82]
The Defendant had difficulty in explaining why if he did not regard
the Plaintiff as his business partner, in correspondence
to third
parties he referred to her as his business partner.  This is
illustrated in a letter he addressed to the Chairman
of the Housing
Committee CDM (Pty) Ltd regarding accommodation for the Plaintiff
where he stated
[2]
… “
Mrs
Cloete, my business partner in Hairline and friend shares the house
with me
”.
In response to this he said that they were only business partners on
paper.
[83]
Similarly, he was unable to explain why in an application to First
National Bank, in a document
[3]
entitled “
Declaration
of Partnership
”,
to acquire banking facilities for the Visions Hair Salon, it was
stated that he and the Plaintiff will be carrying on a
“
business
in co-partnership under the name and style of Visions
”.
His explanation why in the document he refers to them as partners was
that he wanted to assist the Plaintiff financially.
I find this
explanation improbable.  He further did not want to concede in
the face of overwhelming evidence that the Plaintiff
was the one who
ran the day to day businesses of Visions, Black Diamond Clothing and
Amigo’s, whilst it was abundantly clear
that he was in fulltime
employment.
[84]
He once again tried to down play her role in setting up the shoe
outlets in Hermanus
[4]
, whilst
there was overwhelming documentary evidence, which he could not
dispute, that shows how she contributed to the establishment

thereof.  He once again stubbornly refused to concede the extent
of her involvement.
[85]
The Defendant in evidence testified that his monthly loan repayments
of R4 200,00 on a R500 000,00 loan made to him
by his
mother constituted only interest and not capital payments.  The
Plaintiff testified that this loan was paid off after
10 years.
This he denied, but could not explain why in a document he stated
that the monthly payment of an amount of R4 200,00
to his mother
constitutes an allowance and not his loan repayment.  There is
clearly no proof that, if the loan was still
in existence, he is
still paying it off.  His evidence around this issue has to be
viewed with great suspicion.
[86]
The Defendant further argued that the fact that they signed an
antenuptial contract before their intended marriage was proof
showing
that there was never an intention to form a universal partnership. Mr
McClarty, on behalf of the Plaintiff, argued that
this is of no
significance, because the antenuptial contract can only have any
validity or influence if there indeed was a valid
marriage.
[87]
The Defendant on more than one occasion said that he needed the
Plaintiff to come back to him on the occasions that she had
left him,
so that he could focus on his businesses and farming activities.
In making such a concession, he failed to appreciate
that were it not
for her contributions, he would not have been able to expand the
businesses.
[88]
On a conspectus of the evidence I find the version of the Plaintiff
regarding the functions and the role she played in the
businesses of
the Defendant not only credible but overwhelmingly consistent with
probabilities.  The Defendant’s version,
on the other
hand, I find that it not only lacks credibility, but is also highly
improbable.
[89]
Universal Partnership
The
next question that needs to be considered is whether there was a
universal partnership that existed between the Plaintiff and
the
Defendant.  The legal principles applicable to a universal
partnership were summarized by
Brand JA
in
BUTTERS v MNCORA
2012 (4) SA 1
(SCA)
at 5 [11] as follows:
“
I
now turn to the relevant legal principles. As rightly pointed out
by June Sinclair (assisted by Jaqueline Heaton) The Law
of
Marriage vol 1 at 274, the general rule of our law is that
cohabitation does not give rise to special legal consequences. More

particularly, the supportive and protective measures established by
family law are generally not available to those who remain
unmarried,
despite their cohabitation, even for a lengthy period (see eg
Volks NO v Robinson
[2005] ZACC 2
;
2005 (5) BCLR 446
(CC)). Yet a cohabitee can
invoke one or more of the remedies available in private law,
provided, of course, that he or she can
establish the requirements
for that remedy. What the plaintiff sought to rely on in this case
was a remedy derived from the law
of partnership. Hence she had to
establish that she and the defendant were not only living together as
husband and wife, but
that they were partners. As to the essential
elements of a partnership, our courts have over the years accepted
the formulation
by Pothier (RJ Pothier A Treatise on the Law of
Partnership (Tudor's Translation 1.3.8)) as a correct statement of
our law (see
eg Bester v Van Niekerk1960 (2) SA 779 (A) at 783H –
784A;  E Mühlmann v Mühlmann1981 (4) SA 632 (W) at
634C
– F; Pezzutto v Dreyer1992 (3) SA 379 (A) at 390A –
C). The three essentials are, firstly, that each of the parties

brings something into the partnership or binds themselves to bring
something into it, whether it be money, or labour, or skill.
The
second element is that the partnership business should be carried on
for the joint benefit of both parties. The third
is that the
object should be to make a profit. A fourth element proposed by
Pothier, namely, that the partnership contract should
be legitimate,
has been discounted by our courts for being common to all contracts
(see eg Bester v Van Niekerk supra at 784A).”
See
also
PONELAT v SCHREPFER
2012 (1) SA 206
(SCA)
at
para
[24]
;
McDonald
v
Young
2012 (3) SA 1
(SCA)
.
[90]
In order for the court to conclude that a universal partnership
existed between the parties the court has to find whether the

Plaintiff has satisfied the three essential elements of a partnership
as formulated by
Pothier
(R J Pothier A Treatise on the law of
Partnership) to which
Brand JA
refers to in the
Butters
judgment. Firstly, each of the parties must bring something into the
partnership or must bind themselves to bring something into
it,
whether it be money, or labour, or skill.  Secondly, the
partnership business should be carried on for the joint benefit
of
both parties.  Thirdly, the object of such partnership should be
to make a profit.
[91]
Regarding the first element, it is clear that both the Plaintiff as
well as the Defendant brought something into the partnership.

The Plaintiff used some of her money to invest in the businesses, and
put in a lot of hard work into the businesses.  She
also used
her skills to make the businesses a success.  She also sought
out the business opportunities for the partnership,
an example being
when she made enquiries about a further hair salon that was for sale.
Furthermore, she brought to the attention
of her partner the
opportunities to purchase the businesses of Black Diamond, Penny
Farthing and Amigo’s, and she advised
him of the good business
sense in doing so. She encouraged the Defendant to buy his father’s
farm and also encouraged him
to lease the two further farms adjacent
to their farm.  She was not a passive bystander who left it only
to the Defendant
to seek out business opportunities.
[92]
She was further instrumental in assisting with the design and
completion of the Plattekloof property.  She even continued
to
investigate the possibility of using the Plattekloof property to
generate an income for herself and the universal partnership
after
the Defendant left her.  This she did enthusiastically under the
supervision of and with the approval of the Defendant
during the
period May – July 2009, and from February 2010 to June 2010,
when she made enquiries and tried to convert the
Plattekloof property
into a guest house for the 2010 World Cup.
[93]
I have already accepted the Plaintiff’s version above that of
the Defendant in regard to the hard work and effort she
invested in
not only establishing the businesses but also in sustaining them,
especially whilst the Defendant was still in full-time
employment.
[94]
Regarding the second element, I am satisfied that the partnership
business was carried on for the joint benefit of both the
Plaintiff
and the Defendant.  As a result of their partnership they
managed to acquire many assets during the subsistence
thereof.
The Defendant was not able to show that the Plaintiff did not make
any contribution to any of the assets they acquired
during the period
in which they were involved in their intimate relationship and which
they may still currently own. It is clear
that their assets
accumulated during the period of their relationship.   The
Defendant when he at that stage said that
“
ons het die
afgelope jare ‘n m…. klomp geld bymekaar gemaak
”,
implicitly acknowledged their status as partners, is later
explanation that these words were not meant to be literally
construed
as such, is highly unlikely, when he referred to the assets which
they accumulated as “
ons goed
”.  The
Plaintiff’s evidence was that the proceeds of the business were
used to acquire further business or assets.
[95]
Regarding the third element it is clear that the Plaintiff and
Defendant initially started off by buying a hairdressing salon
in
1994.  From there, their businesses showed a steady growth.
The Penny Farthing building for example was acquired
for an amount of
R225 000,00. The value thereof is currently N$1 282 800,00.
The farm was bought for N$300 000,00.
The value currently
is N$2 891 000,00.  When the Hermanus shoe outlets did
not make any profit they decided to sell
them.  It is therefore
clear from this evidence that the further object of their partnership
was to make a profit.  In
the
Butters
matter (
supra
)
where the Plaintiff’s contribution was restricted to
maintaining the common home and raising her and her partner’s

children, the SCA confirmed the determination of the Plaintiff’s
share in the universal partnership as 30%.  In this
particular
case, the parties had been living together in an intimate
relationship of 15 years.  The Plaintiff’s role
in the
formation, expansion and subsistence of the partnership was far more
than that of just a passive partner who merely kept
a home for the
Defendant in order to create the opportunity for him to give his
undivided attention to the various businesses.
Although the
Plaintiff also played such a role, she made a direct and integral
contribution to each of the businesses they established.
The
businesses would not have gotten off the ground and the Plaintiff and
the Defendant would not have acquired all these assets
had it not
been for her direct involvement.  This was especially so during
the time when the Defendant was in full time employment.
[96]
In each and every one of the businesses her skills and energy are
inextricably linked.  This also applies to the house
in
Plattekloof, and is borne out by the role and contribution she played
in maintaining their common home.  During the time
she worked in
the businesses all her time and energy was focused on promoting the
interests of both the parties.  It was from
this time that the
universal partnership came into existence.  The Defendant
referred to the property they acquired and the
businesses as “
ons
goed
” (our property), and “
ons besighede
”.
As said earlier, the Defendant’s argument, that his references
to their property and business in this manner,
should not have been
taken literally such that they be understood as his giving credence
to the existence of a universal partnership,
is implausible.  In
the light of the relationship they were involved in, and the
Plaintiff’s inextricable involvement
in each of their
businesses, the only conclusion that one could come to is that a
universal partnership had come into existence.
[97]
Even on the Defendant’s own version he needed the Plaintiff to
be with him because he wanted her to maintain their common
home so
that he could concentrate on running the farm and the other
businesses.  Even if one should accept on his version
that the
Plaintiff’s contribution to the commercial undertaking was
insignificant, it does not necessarily mean that no universal

partnership came into effect.  In this regard,
Brand JA
held at para [19] of
Butters
that:
“
Once
it is accepted that a partnership enterprise may extend beyond
commercial undertakings, logic dictates, in my view, that
the contribution
of both parties need not be confined to a
profit making entity. The point is well illustrated, I think, by the
very facts of this
case. It can be accepted that the plaintiff's
contribution to the commercial undertaking conducted by the defendant
was insignificant.
Yet she spent all her time, effort and energy in
promoting the interests of both parties in their communal enterprise
by maintaining
their common home and raising their children. On
the premise that the partnership enterprise between them could
notionally
include both the commercial undertaking and the non-profit
making part of their family life, for which the plaintiff took
responsibility,
her contribution to that notional partnership
enterprise can hardly be denied.”
In
this case, however, on the version that I accepted of the Plaintiff,
the role the Plaintiff played in the commercial enterprise
or
business of the partnership cannot be regarded as insignificant.
[98]
Her partnership role cannot be limited to that of a housewife who
tended to the maintenance of the home.  When she played
this
role it was to assist the Defendant in executing the commercial
undertaking of the partnership.  This contribution she
made was
in addition to the indispensible contribution she made to the
businesses where she contributed her skills, energies, time,
capital
and income to promote the interests of the universal partnership.
She further contributed her administrative skills
and know-how for
the promotion of the businesses.  She further contributed to the
financial growth of the businesses.
As a result of this, they
acquired the following assets:
1)
A hair salon in Oranjemundt, Hairline
Unisex (August 1994);
2)
The farm, Narudas-Suid (8 December 1994);
3)
The hair salon in Oranjemundt, ‘Good
Looks’, which changed its name to ‘Visions Hair Studio’
in February
1996;
4)
In March 1999, a clothing store in
Oranjemundt, ‘Black Diamond Clothing’;
5)
In April 1999 a take-away business in
Oranjemundt, ‘Amigos Take-Aways’;
6)
In November 1999 a commercial building in
Oranjemundt, namely ‘Penny Farthing’;
7)
In April 2001, the ‘Ritz Clothing’
store in Rosh Pina;
8)
In August 2001, the residential property at
8 Silverboom Avenue, Plattekloof 3, Western Cape and furniture;
9)
In June 2004, the two footwear stores in
Hermanus together with stock and equipment;
10)
In June 2005, a flatlet was built onto the
premises of Penny Farthing in Oranjemundt;
11)
Livestock on the farm Narudas-Suid as well
as farms rented by the Defendant;
12)
Motor vehicles;
13)
Certain insurance policies.
[99]
In the
Ponelat
case
(supra)
Meer AJA
at para
[20] followed the approached adopted in
Mühlmann v Mühlmann
1984 (3) SA 102
where she held:
“
In
E Mühlmann v Mühlmann1984 (3) SA 102 (A) at 124C – D
the approach as to whether a tacit agreement can be held
to have been
concluded was said to be, 'whether it was more probable than not that
a tacit agreement had been reached'. It was
also stated that a court
must be careful to ensure that there is an animus contrahendi and
that the conduct from which a contract
is sought to be inferred is
not simply that which reflects what is ordinarily to be expected
of a wife in a given situation.
See
Mühlmann v Mühlmann, supra, at
123H – I; Muhlmann v Muhlmann1981 (4) SA 632 (W) at 634F –
H.”
[100]
Given the relationship they were involved in and the Plaintiff’s
relationship and involvement in each of their businesses,
the only
conclusion that one could come to is that a universal partnership
came into existence. Such partnership came into existence
as from
February 1994, and continued up to and until June 2010. The question
of the termination of the universal partnership will
be discussed
below under the issue of Prescription.
I
am therefore convinced that the Plaintiff discharged her onus to
prove the existence of a universal partnership in which they
agreed
to put in common all their property present and future.
[101]
The Value of the Universal
Partnership
As
stated earlier during a pre-trial conference held between the parties
on 16 September 2013
[5]
, the
parties in terms of Rule 33(8) agreed that the merits and the quantum
in respect of the counter claim would be separated,
unless the
parties could agree on the quantum of the counter claim before the
trial.  This had as a consequence that all the
claims of the
Plaintiff would be adjudicated conjunctively together with the
counterclaim of the Defendant except the quantum in
respect of the
counterclaim.
As
a result of this, the parties’ approach has resulted in the
unusual situation where the partnership together with the debatement

or settlement of accounts claim was to be adjudicated conjunctively.
In
Doyle and Another v Fleet Motors PE (Pty) Ltd
1971 (3) SA 760
(A)
,
Holmes JA
at 762F – 763D made the following general
observations regarding the procedure which would be applicable with
respect to
a claim for the delivery of an account the debatement
thereof, and the payment of monies owed in terms of such an account.
“
'1.
The plaintiff should aver -
(a)
his right to receive an account, and
the basis of such right, whether by contract or by fiduciary
relationship or otherwise;
(b)
any contractual terms or
circumstances having a bearing on the account sought;
(c)  the
defendant's failure to render an account.
2.
On proof of the foregoing, ordinarily the Court would in the first
instance order only the rendering of an account within a specified

time. The degree or amplitude of the account to be rendered would
depend on the circumstances of each case. In some cases it might

be appropriate that vouchers or explanations be included. As to
books or records, it may well be sufficient, depending on
the
circumstances, that they be made available for inspection by the
plaintiff. The Court may define the nature of the account.
3.
The Court might find it convenient to prescribe the time and
procedure of the debate, with leave to the parties to approach it
for
further directions if need be. Ordinarily the parties should first
debate the account between themselves. If they are unable
to agree
upon the outcome, they should, whether by pre-trial conference or
otherwise, formulate a list of disputed items and
issues. These could
be set down for debate in Court. Judgment would be according to the
Court's finding on the facts.
4.
The Court may, with the consent of both parties, refer the debate to
a referee in terms of s 19bis(1)(b) of the Supreme Court
Act 59 of
1959.
5.
If it appears from the pleadings that the plaintiff has already
received an account which he avers is insufficient, the Court
may
enquire into and determine the issue of sufficiency, in order to
decide whether to order the rendering of a proper account.
6.
Where the issue of sufficiency and the element of debate appear to be
correlated, the Court might, in an appropriate case, find

it convenient to undertake both enquiries at one hearing, and to
order payment of the amount due (if any).
7.
In general the Court should not be bound to a rigid procedure, but
should enjoy such measure of flexibility as practical justice
may
require.”
Such
a procedure was also followed in
Dale
Street Congregational Church v Hendrickse en ‘n Ander
1992 (1)
SA 133
(E)
where it was held in the
headnote that:
“
An
order of court for the delivery of an account is not a
prerequisite for the debatement of the account. Even if it is
accepted
that 'debate' of an account 'is . . . ancillary to rendering
an account', it is a non sequitur to contend on the basis of this
assumption that an order of court for the delivery of an account is a
prerequisite for the debatement thereof.
A
plaintiff is, in an appropriate case, entitled to insist on his
claims for the delivery of an account and the debate thereof being

heard simultaneously provided he can establish a prima facie case for
the relief sought.”
In
this particular case, accept for the value of the livestock, the
Defendant accepted the valuations of the assets based on that
which
was proven by the Plaintiff as well as the valuation of those assets
contained in a document discovered by the Defendant
as exhibit
“CSVH3” (Plaintiff exhibit bundle A1 page 148).
It
was proven that the assets of the universal partnership are the
following:
The
Farm Narudas-Suid N$ 2 891 000,00
Boerbok
rams 30 @ N$1300 N$     39 000,00
Bok
ewes 650 @ N$1000 N$   650 000,00
Dorper
rams 75 @ N$750 N$     56 250,00
Dorper
ewes 1500 @N$700 N$ 1 050 000,00
Dorper
lambs 1500 @ N$400 N$    600 000,00
Bok
lambs 1500 @ N$550 N$    825 000,00
Cattle
45 @ 456x12 per kilo N$    246 240,00
N$5 472,00
Motor
vehicles N$   500 000,00
Pennyfarthing
building N$1 282 800,00
Black
Diamond/Ritz
Clothing:
Stock
N$200 000
Fittings
N$  75 000,00
Plattekloof
Property N$   2 950 000,00
Furniture
N$  85 000,00
Policies
N$   1 601 626,00
N$
13 740 916,00
Liabilities:
Due
to the bank: N$ 129 656,00
Mortgage
bond on N$ 778 963,00
Plattekloof
property:
[102]
As stated above, in respect of the value of the above assets, the
Defendant only disputed the value of the livestock
as an asset that
he had on the farm.  The Plaintiff by means of evidence of
persons who are from the area where the Defendant
conducts his
farming activities, presented certain figures to prove the value of
the livestock the Defendant had at his farm.
The Defendant,
despite persistent requests to discover and to assist the Plaintiff
in determining these values, was reluctant and
declined to do so.
He persisted with this despite him agreeing during Rule 37
[6]
pre-trial proceedings that in order for him to render a full account
which indicated all documents and statements relating to the
assets
of the business of the partnership he had to make a full disclosure
thereof.
[103]
Due to the fact that the parties have lived as husband and wife for a
period of 15 years and have accrued valuable
assets over the years,
it would not be wrong to follow the principles and guidelines laid
down by the courts in dealing with the
division of marital property.
In
MGB v DEB
[2013] 4 ALL SA 99
(KZD)
the court remarked at
[39]:  “
In my view litigation is not a game where
parties are able to play their cards close to their chest in order to
obtain a technical
advantage to the prejudice of the other party.
This is even more so in matrimonial matters where the lives of the
parties
have been inextricably bound together and as in this case,
the efforts of both parties made a significant contribution to the
Defendant’s
estate”
.
[104]
In my view therefore the values as presented as evidence by the
Plaintiff about the livestock on the farm is accepted
as correct and
will be accepted in determining the value of the assets of the
universal partnership.
[105]
The Special Plea of Prescription of the claim based on Universal
Partnership
Mr
McClarty argued that there is no merit in the defence that the plea
of the Plaintiff had prescribed, even if the court should
accept that
the intimate relationship between the parties had been terminated
before 16 August 2009, being a date 3 years prior
to the amendment of
the Summons incorporating the claim based on universal partnership.
He argued that there is enough evidence
to suggest that the universal
partnership which came into existence as a result of this intimate
relationship continued to exist
after 16 August 2009.  He said
the strongest evidence to indicate this state of affairs was that the
Plaintiff continued to
receive payment in salary each and every month
until March 2010 from the universal partnership.
[7]
He further argued that on the Defendant’s own evidence the
parties were still engaged in partnership business regarding
the
letting out of the Plattekloof property in June 2010 for the purposes
of the Plaintiff receiving an income and the balance
of the rental
income being paid to the partnership.  In this regard he
referred to enquiries the Plaintiff made to letting
agencies.
[8]
[106]
To further illustrate this point Mr McClarty also referred to a
transcript of a telephone conversation between
the parties dated 24
October 2009 where they discussed the plans to rent out the
Plattekloof property as a guest house or overnight
club for the 2010
Soccer World Cup.
[9]
He
also referred to evidence where the Plaintiff made enquiries in
regard to the requisite municipal authority to run a business
of a
guest house from the Plattekloof property.  According to him the
universal partnership claim was served on 16 August
2012 in an
amended Particulars of Claim.  He therefore argued that in the
circumstances, a period of three years had not lapsed
by the time the
universal partnership claim was served on the Defendant.
[107]
In reply to this the Defendant in his heads of argument, does not
deal directly with the arguments of the Plaintiff
as to why the claim
has not prescribed. The Defendant argued that according to him, the
relationship between them was terminated
on 22 March 2009.  He
further argued that after he left for Namibia on 25 March 2009 that
there was barely any contract between
them except when he responded
to requests from the Plaintiff to advance funds for the maintenance
of the house, electrical, garden
services and the payment of her
salary.
[108]
He further denied an assertion of the Plaintiff in her initial
Particulars of Claim that their romantic relationship
was terminated
on 24 April and/or 7 May 2009.   As pointed out by Mr
McClarty, the Defendant however did not either in
his evidence or
argument deal with the facts based on the evidence that the universal
partnership was still in existence after
the termination of the
relationship due to the fact that she still continued receiving
payment from the universal partnership until
5 March 2010, and that
on the instructions of the Defendant they were still engaged in
partnership business regarding the letting
out of the Plattekloof
property in June 2010, for the purposes of the Plaintiff receiving an
income of which the balance of the
rental income would be paid to the
partnership.
[109]
On the undisputed facts therefore I agree with Mr McClarty, that the
universal partnership claim had not prescribed.
The evidence
clearly indicates that for the periods May 2009, June 2009, July
2009, February 2010 and June 2010 the Plaintiff was
engaged in
partnership business regarding the letting out of the Plattekloof
property.  This was in addition to the salary
she was paid until
March 2010.  The Plattekloof property was acquired whilst they
were still in a relationship and was acquired
due to their collective
efforts as business partners in the universal partnership.  The
purpose of the further business she
conducted was for the benefit of
the universal partnership.
[110]
The above is a clear indication that even though the romantic
relationship had ceased to exist on the Defendant’s
version on
or during March 2009, the universal partnership continued to exist at
least until June 2010.  As such, when the
claim relating to the
universal partnership was made on 16 August 2012, the claim had not
yet prescribed.
[111]
The Plaintiff’s Claim for Damages based on the
actio
iniuriarum
I
will accept on the Defendant’s version that the engagement was
broken off on or during 22 March 2009.
In
Van Jaarsveld v Bridges
2010 (4) SA 558
(SCA) Harms DP
at 561
at
para [4]
held that:
“
A
breach of promise may give rise to two distinct causes of action. The
one is the actio iniuriarum. The 'innocent' party is entitled
to
sentimental damages if the repudiation was contumelious. This
requires that the 'guilty' party, in putting an end to the
engagement,
acted wrongfully in the delictual sense and animo
iniuriandi. It does not matter in this regard whether or not the
repudiation
was justified. What does matter is the manner in which
the engagement was brought to an end. The fact that the feelings of
the
'innocent' party were hurt or that she or he felt slighted or
jilted is not enough. I shall revert to this issue.”
Harms
DP
furthermore held at
para
[19]
:
“
A
breach of promise can only lead to sentimental damages if the breach
was wrongful in the delictual sense. This means that the
fact that
the breach of contract itself was wrongful and without just cause
does not mean that it was wrongful in the delictual
sense, ie that it
was injurious. Logically one should commence by enquiring
whether there has been a wrongful overt act. A
wrongful act, in
relation to a verbal or written communication, would be one of an
offensive or insulting nature. In determining
whether or not the act
complained of is wrongful the court applies the criterion of
reasonableness. This is an objective test.
It requires the
conduct complained of to be tested against the prevailing norms of
society. To address words to another which
might wound the
self-esteem of the addressee, but which are not, objectively
determined, insulting (and therefore wrongful), cannot
give rise to
an action for injuria. Importantly, the character of the act cannot
alter because it is subjectively perceived
to be injurious by
the person affected thereby.”
[112]
The act of repudiation in this particular case must be viewed in the
light of the totality of the facts and circumstances
of this matter,
especially the conduct of the Defendant preceding the repudiation of
the agreement to marry, and the expectation
created by the Defendant,
and the Plaintiff’s desire, notwithstanding this conduct to
fulfil her obligations in terms of
the agreement to get married.
This repudiation should be viewed against the history and background
of the relationship that
existed between the parties.  The
Plaintiff was 43 years old
[10]
when she and the Defendant became involved with each other in 1994.
They became engaged to one another in February of 1999,
at which
stage the Plaintiff was 48 years of age.  She was about 58 years
of age when the engagement was broken off.
She was therefore
engaged to the Defendant for a period of 10 years.  During all
this time he promised to marry her.
She started to make plans
for the wedding and the parties even went ahead to enter into an
antenuptial contract on 17 October 2000.
As a result of this
she was instructed by the Defendant to proceed with the wedding
arrangements.  The wedding was to have
taken place in December
2000.  According to the Plaintiff’s evidence, which I
accept, the Defendant provided various
excuses as to why they should
not get married.  The Defendant’s version was, as he put
it, “
December
came and went and nothing happened
”.
What I find strange about his version is that if the Plaintiff was
the hold-up, why did he not enquire from her,
when the wedding
approached, why there was no progress in the wedding preparations?
The objective and undisputed evidence
was that there was at all
times a burning desire on the part of the Plaintiff to get married.
Throughout the duration of
their relationship the Defendant created
the expectation that he would marry the Plaintiff, but this never
materialized.
[113]
It is evident from correspondence between the Plaintiff and the
Defendant (Exhibit A4 Plaintiff’s bundle),
as referred to
earlier, that the Plaintiff loved the Defendant notwithstanding the
humiliation and degrading treatment she suffered
at the hands of the
Defendant.  This was characterized by extreme verbal abuse and
physical abuse.  Notwithstanding the
infringement of her dignity
and self-respect, she still loved him and wanted to get married to
him right until the end.  On
the night the Defendant broke off
the engagement, the Plaintiff became hysterical and even went on her
knees to beg him not to
do so.  She also felt betrayed when she
found out that after all the years that he had left her for another
woman.  Even
after their relationship broke down she still made
attempts with him to reconcile.
[114]
In applying the objective test in determining whether the act of
repudiation was wrongful, the conduct of the
Defendant, given the
circumstances of the case, cannot be regarded as reasonable if tested
against the prevailing norms of society.
In my view, the
conduct of the Defendant viewed objectively is sufficient to sustain
an action for
iniuria
.
[115]
Mr McClarty argued that in the
Butters
decision an award for
damages for breach of promise was made in the amount of R25 000,00
and that the court in this case should
award a similar amount.
Although the facts and circumstances of this particular case are not
similar to those of the
Butters
case, there is no reason for
me not to make a similar award, particularly where the Plaintiff
seems to be satisfied with such an
amount.
[116]
The Defendant’s Claim in Reconvention
This
claim in my view is unsustainable and cannot be upheld for the
following reasons.  In my view, having regard to the totality
of
the evidence, and in particular in the light of the Defendant’s
and the Plaintiff’s repeated references to the partnership

property as “
ons goed
”, even though the house was
registered in the Defendant’s name, this type of partnership
can be characterized as a
societas universum bonorum
, by which
the parties agreed that all their possessions and everything which
they in future collectively or individually acquired
from whatever
source should be considered to be partnership property. The
Plaintiff, being a partner who is entitled to enjoy the
benefits of
the partnership property, is entitled to free and undisturbed access
to such property. See
LAWSA
paragraph 294
Henning and
Delport
. See also
Sepheri v Scanlan
2008 (1) SA 322(C)
at
337J – 338A – D
.
[117]
There is no evidence and the Defendant also did not contend, that the
Plaintiff’s occupation was for her exclusive use
and to the
exclusion of the rights of the defendant in the property. On the
contrary, the evidence tends to suggest otherwise.
There is no basis
upon which it is alleged that, from April 2009, the Plaintiff
unlawfully occupied the said property. There was
no formal request to
Plaintiff to vacate the property.The only evidence that would
remotely suggest that the Defendant may have
not been satisfied with
the Plaintiff’s occupation of the property, was to the extent
that he alleged that it would have
been undesirable for her also to
stay on the property should guests be accommodated there. To this,
she answered that she needed
a place to stay and that it would have
been in the interest of her running the property as a business for
her to remain there.
This however does not amount to unlawful
occupation on the property on her part.
[118]
According to the evidence the Plaintiff’s continued presence on
the property was to ensure that it was properly maintained
and for
the benefit of the universal partnership. The Defendant on a regular
basis advanced some funds to her to pay for the maintenance
of the
property. He also supported and encouraged her to enquire from the
relevant authorities how best to utilize the property
for the
purposes of providing accommodation for the 2010 Soccer World Cup.
All these facts tend to suggest that he only made this
claim when she
became involved in litigation. As a result of this, this claim is
dismissed.
[119]
Calculation of 50% Share
According
to the evidence the Plaintiff has shown that the universal
partnership assets amount to N$13740 916,00. The liabilities
include
an outstanding amount owed to the bank of N$129656,00 plus the
mortgage bond on the Plattekloof property of N$ 778963.
[120]
Mr McClarty argued that although the Defendant’s evidence
regarding the loan of N$ 500000,00 is suspicious, the court
should
give the Defendant the benefit of the doubt and hold that such loan
is still outstanding and reduce the Plaintiff’s
share by an
amount of N$250000,00. He argued that the 50% share that the
Plaintiff would be entitled to would be N$6166488,50 or
its rand
equivalent.
[121]
He further requested that the court should issue an order declaring
that failing payment of the amounts of N$6166488,50 and
R25 000,00
within 30 calendar days of this order, the property known as 8
Silverboom Avenue, Plattekloof 3, Cape Town should be
attached in
order to find and confirm jurisdiction and to be declared executable
for it to be sold in execution of the judgment.
I agree with his
contention.
[122]
In the result therefore I make the following order:
1)
The Special Plea of prescription is
dismissed;
2)
That the Defendant pay the Plaintiff the
sum of N$6 166 488,50 which constitutes a 50% share in the
universal partnership;
3)
That the Defendant pay the Plaintiff the
sum of R25 000,00 for the contumacious breach of promise;
4)
Cost of suit.
5)
It is ordered that failing payment of the
amounts in 2 and 3 above, within 30 calendar days of this order, the
property known as
8 Silverboom Avenue, Plattekloof 3, Cape Town be
attached in order to find and confirm jurisdiction and further that
this property
is declared executable to be sold in in execution of
the judgment debt;
6)
The counterclaim of the Defendant is
dismissed with costs.
HENNEY,
J
Judge
of the High Court
[1]
The
Defendant’s son.
[2]
Page
8 – Plaintiff Exhibit Bundle A1
[3]
Plaintiff
Bundle Exhibit A1 page 33.
[4]
Plaintiff
Exhibit A1 pg 101, 102, 106, 109 and 112 etc.
[5]
Page
63 paragraph 7.1, 7.2 of Pleadings Bundle.
[6]
Pleadings
bundle – Record page 63 para 7.1 read with page 11 Particulars
of Claim.
[7]
This
is indicated in a bank statement of the Plaintiff Exh A5 page 21.
[8]
Pages
95 and 120 – Exh A2.
[9]
Exh
A3 page 29 and page 30.
[10]
Plaintiff
was 62 years old at the time of her giving evidence.