Butters v Mncora

• Jurisdiction: South Africa
• Judge: Brand JA, Heher JA, Cachalia JA, Mhlantla JA and Tshiqi JA
• Judgment Date: 28 March 2012
• Citation: 2012 (4) SA 1 (SCA)
• Docket Number: 181/2011 [2012] ZASCA 29
• Hearing Date: 08 March 2012
• Counsel: JJ Gauntlett SC (with RG Buchanan SC) for the appellant. A Beyleveld SC (with NJ Mullins) for the respondent.
• Court: Supreme Court of Appeal

Brand JA (Mhlantla JA and Tshiqi JA concurring):

G [1] I find it convenient to refer to the parties as they were cited in the court a quo. Hence, I shall refer to the appellant, Mr Butters, as 'the defendant' and to the respondent, Ms Mncora, as 'the plaintiff'. For nearly 20 years the parties lived together as husband and wife. But they were not married. Even though they were engaged to be wed for almost 10 years, this never happened. Eventually the relationship came to an H end on New Year's Day 2008. By that time the defendant was by all accounts a wealthy man, while the plaintiff owned no assets worthy of mention.

[2] The plaintiff then instituted action against the defendant in the court I a quo, claiming half of the defendant's assets. She founded her claim on two alternative grounds. First, on the basis that a tacit universal partnership existed between the parties in which they held equal shares. Alternatively, she claimed contractual damages arising from the defendant's breach of promise to marry her, calculated on the basis that the intended marriage would be in community of property. During J the course of the proceedings in the court a quo (before Chetty J), the

Brand JA (Mhlantla JA and Tshiqi JA concurring)

plaintiff, however, abandoned her alternative claim for contractual A damages. Other claims between the parties against each other were also abandoned or resolved. All that remained at the end of the proceedings in the court a quo were the plaintiff's claims based on the existence of a universal partnership and her delictual claim for damages resulting from the defendant's breach of promise to marry her. B

[3] With regard to the first claim, Chetty J decided that a tacit universal partnership did in fact exist between the parties. He then determined the plaintiff's share in the partnership at 30 % and awarded her an amount equal to that percentage of the defendant's net asset value as at the date when the partnership came to an end. On the plaintiff's second claim C Chetty J awarded her delictual damages for breach of promise in an amount of R25 000. The defendant's appeal, with the leave of the court a quo, is confined to the judgment on the plaintiff's first claim. Moreover, it is directed only against the finding that a tacit universal partnership existed between the parties. No issue is therefore taken with the percentage of the defendant's estate awarded to the plaintiff. The only D question for determination on appeal therefore turns on the existence of a universal partnership between the parties. This question is to be considered in the light of the background facts which, in turn, are to be distilled from the evidence led at the trial.

[4] The only two witnesses in the court a quo were the parties E themselves. Insofar as their versions were sometimes conflicting, the court a quo decided, on the basis of its credibility findings, to accept the plaintiff's account. On appeal the defendant's counsel conceded, rightly in my view, that these credibility findings cannot be faulted. On the record the defendant came across as a particularly bad witness and the F adverse comments of the court a quo appeared to be fully justified. What follows therefore derives mainly from the account of the plaintiff. The defendant's version is only relied upon where it stood uncontroverted.

[5] The plaintiff was born in 1964. After she matriculated, she enrolled for a two-year course in business administration. She met the defendant G during 1988, when she was 24 and he was 27. At the time she lived with her parents in Port Elizabeth while he lived in Grahamstown where he worked as a technician for the post office, which later became Telkom. He stayed in a garden flat at the back of someone's house. The parties visited each other regularly over weekends, either in Port Elizabeth or H Grahamstown. In time they became intimate and a child was born from their relationship in January 1991. While the defendant continued to work at the post office, he started to install alarm systems in houses and cars, in his spare time, for extra income. During the week he did so in Grahamstown, after hours, and over weekends in Port Elizabeth, where the plaintiff assisted him, so she testified, by 'giving him some stuff and I wires that he wanted' and also by introducing him to prospective clients.

[6] In June 1992 the defendant resigned from the post office and started a security business under the name Hitech. Though the plaintiff continued to reside in Port Elizabeth, the parties discussed the matter and decided that he should establish the business in Grahamstown J

Brand JA (Mhlantla JA and Tshiqi JA concurring)

A where there was less competition. As the business grew, the defendant built a house in Port Elizabeth where the plaintiff moved in together with their son and her daughter from a previous relationship, whom the defendant maintained and treated as his own. During 1994 the plaintiff started working as a secretary with the Department of Education at a salary of R2000 per month, but she stopped doing so after two years B because, so she said, the defendant wanted her to stay at home with the children.

[7] During 1998 the defendant proposed to the plaintiff and gave her an engagement ring, whereafter he announced their engagement publicly. C On 7 January 1999 the plaintiff gave birth to their second son. In 2004 the defendant's daughter from a previous relationship also took up residence with them, so as to enable her to receive a better education in Port Elizabeth. She stayed for three years until she matriculated in 2007. The defendant's business continued to grow and their lifestyle improved correspondingly. They moved into a house with four bedrooms and a D swimming pool; they employed a full-time domestic worker; expensive family holidays were undertaken; and the children went to expensive private schools. In short, the defendant in time became a very generous provider, while the plaintiff took responsibility for raising the children and maintaining their common home, which the defendant visited over E weekends.

[8] Eventually the defendant gathered many assets. The 'common home' and all other immovable properties so acquired were registered in his name. Yet, the plaintiff's understanding was, so she testified, that '(e)verything . . . was for both of us'; that 'we were sharing everything'; F and that 'no-one was saying that one is mine and the other one is [yours]'. The defendant's intransigent attitude, on the other hand, remained throughout his testimony that whatever he acquired was his and his alone.

[9] During cross-examination the plaintiff conceded that she had virtually G nothing to do with the Hitech business after it had been established in Grahamstown and that she in fact never entered the premises of this business. Her contention, however, remained that, while she made no direct contribution to the defendant's business after he resigned from the post office, she supported him, cared for him and the children, and H maintained their common home. The defendant's counter-position was that the plaintiff played no part in his business life; that he was the only one who earned any income, while she, as he put it, at best brought up the children and paid the household expenses with money provided by him.

I [10] Cracks started appearing in the relationship in 2006 and from 2007 changes in the defendant's behaviour occurred in that, for example, he started spending less time with his family in Port Elizabeth. Ultimately matters came to a head on the evening of New Year's Day, 2008. The plaintiff and the children, who were to stay over in Jeffreys Bay for the night, unexpectedly came home. There they found the defendant J with another woman, Ms Mbewu. The evening ended acrimoniously

Brand JA (Mhlantla JA and Tshiqi JA concurring)

and the relationship between the parties came to an abrupt end. It then A for the first time came to the plaintiff's notice that the defendant had married Ms Mbewu on 15 November 2007. The termination of the relationship left the plaintiff unemployed and without any personal income at the age of 44.

[11] I now turn to the relevant legal principles. As rightly pointed out by B 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 C lengthy period (see eg Volks NO v Robinson 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 D to establish that she and the defendant were not only...