McDonald v Young

• Jurisdiction: South Africa
• Judge: Mpati P, Cloete JA, Snyders JA, Theron JA and Petse AJA
• Judgment Date: 24 March 2011
• Citation: 2012 (3) SA 1 (SCA)
• Docket Number: 292/10 [2011] ZASCA 31
• Hearing Date: 18 February 2011
• Counsel: RS van Riet SC for the appellant. A de Vos SC for the respondent.
• Court: Supreme Court of Appeal

Theron JA (Mpati P, Cloete JA, Snyders JA and Petse AJA concurring):

[1] The parties were involved in a relationship and had cohabited, as J man and wife, for approximately seven years, from June 1999 until May

Theron JA (Mpati P, Cloete JA, Snyders JA and Petse AJA concurring)

2006. After the relationship broke down, the appellant instituted an A action against the respondent in the Western Cape High Court (Cape Town) for an order declaring that a joint venture agreement existed between the parties in respect of immovable property (the property) situate at Port Island, Port St Francis, in the Eastern Cape, alternatively, for an order that the respondent pay maintenance to the appellant. The B high court (Veldhuizen J) found that the appellant had failed to prove the existence of a joint venture agreement and, in respect of the maintenance claim, that there was no duty on the respondent to support the appellant. The appellant appeals to this court with the leave of the high court.

[2] The issues on appeal, as in the high court, are whether the appellant C has established the existence of a joint venture agreement between the parties, alternatively, whether the respondent is under a duty — by operation of law, or alternatively, by virtue of a tacit contract — to support the appellant subsequent to their cohabitation.

[3] Shortly after the parties were introduced to each other the appellant D took up residence with the respondent at her farm in Knysna. The appellant's main business interest was the promotion and marketing of surfing and surfboard products. During 1999 the appellant and his Durban-based brother had been in the process of establishing a new business, Inter Surf Africa Exporters (ISAE), which was involved in the manufacture and export of surfboards. The appellant did not possess any E meaningful assets and had very limited income. The respondent, on the other hand, was a woman of considerable means. She had an annual cash income in excess of R1,3 million and possessed substantial assets. When the appellant and the respondent met, they were 59 and 54 years of age, respectively. It was common cause that the appellant had not been in F receipt of a regular income and had for a time during the course of the relationship received a monthly allowance from the respondent.

[4] The appellant's claim to a half-share in the property was based on an express oral joint venture agreement concluded by the parties. The G appellant testified that the terms of the agreement were that the respondent would contribute financially to the acquisition, completion and refurbishment of the property while the appellant would contribute his time and expertise to oversee the development of the property. According to the appellant, it was agreed that they would each share jointly in the property. The appellant testified that the primary objective H of the agreement was to ensure that he gained financial independence. Despite the fact that the property was to have been registered in both their names, it was subsequently agreed, according to him, that the property would be registered in the respondent's name for tax purposes. It was common cause that the initial written agreement had reflected both their names as purchasers of the property. I

[5] It was contended, on behalf of the appellant, that the high court had erred in failing to accept and rely on the appellant's evidence regarding the agreement, having particular regard to the fact that his evidence was unchallenged. It was further contended that the respondent's failure to testify was fatal to her case and that this court was obliged to accept his J

Theron JA (Mpati P, Cloete JA, Snyders JA and Petse AJA concurring)

A unchallenged evidence in respect of both the agreement and the claim for maintenance.

[6] It is settled that uncontradicted evidence is not necessarily acceptable or sufficient to discharge an onus. In Kentz (Pty) Ltd v Power [1] Cloete J undertook a careful review of relevant cases where this principle was B endorsed and applied. The learned judge pointed out that the most succinct statement of the law in this regard is to be found in Siffman v Kriel, [2] where Innes CJ said:

'It does not follow, because evidence is uncontradicted, that therefore it is true. . . . The story told by the person on whom the onus rests may C be so improbable as not to discharge it.'

[7] It is thus necessary to consider the appellant's evidence in detail. It is clear from the judgment of the high court that it was mindful that the appellant's evidence, in order to be reliable, had to be credible. The high court, on the evidence, reached the conclusion that the respondent had D 'initially intended that the contract should reflect the [appellant] as one of the purchasers'. However, it did not accept his evidence in its entirety and went on to find that the appellant had failed to prove the existence of a joint venture agreement.

[8] In my view, there were a number of unsatisfactory aspects in the E appellant's evidence. It is significant to note how the appellant's claim against the respondent has developed over time. During May 2006 and shortly after the parties parted ways, they met, in the presence of their respective attorneys, with a view to settle the disputes between them. The appellant's evidence, regarding the claim he had advanced at that F meeting, was as follows:

'So the idea was to try and settle the split between yourself and Mrs Young? — I accept I looked at it like that because it did look like we weren't going to get together again, so I assumed that that was the reason.

And what were your claims that day? — My claims that day with regards G to my share of Port St Francis, with regards to my contribution I had made over the seven years and discussion on my contract with the bakkie.'

This was in stark contrast to his testimony in the magistrates' court [3] to the effect that he had, at the time of the meeting, been under the H impression that he did not have a claim against the respondent and that the claim had 'materialised some time afterwards when I . . . approached some attorneys for advice'. The appellant's explanation for the contradiction, that he had meant to convey that he had not yet 'implemented'

Theron JA (Mpati P, Cloete JA, Snyders JA and Petse AJA concurring)

his claim, is in my view unsatisfactory. The very purpose of the meeting A was an attempt to resolve the dispute between himself and the respondent without the need to resort to litigation.

[9] On 17 July 2006, and following upon the May 2006 meeting, the appellant's attorney wrote a letter to the respondent's attorney, which B was intended to 'motivate and substantiate' the appellant's claim against the respondent 'as comprehensively as possible'. (My emphasis.) It was recorded in the letter that the appellant believed that a universal partnership had existed between the parties and that he was entitled to 'some form of compensation' for his contribution to the partnership. (Again my emphasis.) It is instructive that no mention was made of the C appellant's half-share in the property, despite the fact that the appellant testified that he had given his attorney instructions in this regard and that he (the appellant) had had sight of the letter prior to it being dispatched. The development of the appellant's claim over time is not without significance. D

[10] During the period that the parties were cohabiting, the appellant drafted numerous agreements and proposals, the purpose of which was to define the financial...