Van Eden v Delcloo and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Van der Schyff J |
| Judgment Date | 08 September 2023 |
| Citation | 2023 JDR 3555 (GP) |
| Hearing Date | 21 August 2023 |
| Docket Number | 36792/2021 |
| Court | Gauteng Division, Pretoria |
Van der Schyff J:
Introduction
The applicant (Van Eden) essentially seeks an order terminating the partnership allegedly entered into between himself and the first respondent (Delcloo), and the appointment of a liquidator to oversee the winding up of the partnership.
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Delcloo denies that a partnership was entered into and seeks the dismissal of the application.
The applicant’s version
Van Eden contends that he and Delcloo agreed to start a business venture during the middle of 2017. Delcloo proposed that they erect a venue on a property near Cullinan owned by Delcloo and that such venue be utilised for weddings, functions, holiday accommodation, and the like. The sole purpose of the business venture was to raise sufficient capital, whereafter the property would be sold. The proceeds of the sale would be used by the parties to emigrate to Croatia.
After Van Eden researched how to operate a venue of this nature, he agreed, and the parties entered into an oral partnership agreement in terms whereof they traded under the name Bark at the Moon. In terms of the agreement, Delcloo would give his plot on a small holding situated in the Sering Nature reserve outside Cullinan. The plot was purchased at a price of R850 000.00. Van Eden, in turn, would advance the capital to create and erect the necessary infrastructure on the plot.
In terms of the agreement, each party would first receive payment of the monies invested by it, and only after the initial investments were recovered, would the profit be shared equally between Van Eden and Delcloo. The second respondent was registered as the vehicle to conduct the business through.
Construction of the venue was concluded during the course of 2019. Van Eden contributed approximately R3 428 903.00 towards, amongst others, financing the building costs of erecting the venue, applying and obtaining consent from the Tshwane Municipality to build the lodge, and applying for a liquor licence.
The parties started advertising the venue for weddings, functions, and the like. A website was also created through which guests could make bookings. Both parties’ cellphone numbers were listed as the contact numbers for bookings. The business was listed on websites that promote holiday accommodation. Van Eden attached
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Van der Schyff J
photographs of, amongst others, himself and Delcloo’s son painting the venue hall during construction.
Just as the business was starting to grow, the Covid-19 pandemic hit, and the country was placed under lockdown. The business was hard hit and did not generate sufficient income. Van Eden proposed that the parties sell the business, but although Delcloo initially agreed, he apparently changed his mind as he has taken no meaningful steps to market the property.
The business does not have its own bank account, and Delcloo’s bank account is utilised for bookings. Van Eden has not received any portion of the income generated to date. The relationship between Van Eden and Delcloo has become strained to the point where it is no longer possible to continue with the partnership.
Van Eden provided a breakdown of his alleged expenses without indicating clearly what the expenses relate to. In motion proceedings, it does not suffice to state: ‘I have been advised not to attach all the vouchers and bank statements of the expenses, to avoid prolixity of the papers. I do however attach hereto a breakdown of all the expenses paid as annexure ‘FA1’.’ The applicant’s contention that he paid for the building material and construction of the venue must be weighed against the first respondent’s claim that he paid for the building material. Without any confirmatory affidavits and a clear exposition of which amounts relate to what improvements, this issue cannot be dealt with in motion proceedings.
The respondent’s version
Delcloo avers that he bought a plot of land near Cullinan. At Van Eden’s request, he took Van Eden to see the property. After this visit, Van Eden informed him that he (Van Eden) was desirous to assist Delcloo in transforming the property. Van Eden indicated repeatedly that he wanted to assist Delcloo financially as he...
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