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and or tacit agreement based on their conduct The second claim is for damages in the. sum of R100 000 for breach of promise to marry and for certain ancillary relief The. Defendant opposed the action and in his plea denied that a universal partnership. existed between him and the Plaintiff and denied that he had promised to marry the. The Issues, 2 In terms of the pleadings the issues the court is called upon to determine in. respect of the first claim are whether a universal partnership existed between the parties. and if it is found that a universal partner existed the court must make a pronouncement. on the consequential relief sought by the Plaintiff However should the court find that a. universal partnership did not exist then the court must adjudicate the alternative claim. of whether the Plaintiff is entitled to the payment of maintenance from the Defendant. and if so what is an appropriate amount The issues the court has to determine in. respect of the second claim are whether the Defendant promised to marry the Plaintiff. and if so whether there was a breach and if there was a breach whether the breach. was wrongful If it is found that there was no promise to marry or there was no breach. or the breach was not wrongful the Plaintiff cannot succeed If on the other hand all. those elements are established before the court can award damages the Plaintiff must. establish the impairment of the dignitas, 3 The essentials of a special contract of partnership were confirmed in the case of. Pezzuto v Dreyer 1992 3 SA 379 A at 390 as follows. Our courts have accepted Pothier s formulation of such essentials as. a correct statement of the law Joubert v Tarry Co 1915 TPD 277 at. E Schrepfer v H G Ponelat, 280 1 Bester v Van Niekerk 1960 2 SA 779 A at 783H 784A. Purdon v Muller 1961 2 SA 211 A at 218B D The three essentials. are 1 that each of the partners bring something into the partnership. whether it be money labour or skill 2 that the business. should be carried on for the joint benefit of the parties and 3 that the. object should be to make a profit Pothier A Treatise on the Contract. of Partnership Tudor s translation 1 3 8 A fourth requirement. mentioned by Pothier is that the contract should be a legitimate one. 4 The essentiala of the partnership set out above applies equally to a universal. partnership In this regard see Muhlmann v Muhlman 1981 4 SA 632 W V aka L. v De Wet N O 1953 1 SA 612 O at 615 Isaacs v Isaacs 1949 1 SA 952 C at 956. and Schaeffer Butterworths Family Law Cohabitation at page 3 The contract of. partnership may not necessarily be expressed It could be tacit or implied from the. facts provided they admit of no other conclusion than that the parties intended to create. a partnership Festus v Worcester Municipality 1945 CPD 186 C Our courts have. recognised that a universal partnership also known as domestic partnership can come. into existence between spouses and co habitees where they agree to pool their. resources Muhlmann v Muhlmann 1984 3 102 A Kritzinger v Kritzinger 1989 1. SA 67 A Ally v Dinath 1984 2 SA 451 T and V aka L v De Wet supra. The Universal Partnership, 5 Our common law recognises two types of universal partnerships The one is. commonly known as the universorum quae ex quaestu veniunt which Pothier. according to Tudor s translation at page 32 describes as follows. The parties thereby contract a partnership of all that they may acquire. E Schrepfer v H G Ponelat, during its continuance from every kind of commerce They are.
considered to enter into this kind of partnership when they declare that. they contract together a partnership without any further explanation. The other is commonly known as universorum bonorum which Pothier according to. Tudor s translation at page 24 describes as follows. The partnership universorum bonorum is that by which the contracting. parties agree to put in common all their property both present and. See Isaacs v Isaacs 1949 1 SA 952 C, 6 The present claim falls under the universorum bonorum There has been some. uncertainty firstly whether the universorum bonorum has fallen into disuse De Wet. Yeats Kontraktereg at page 381 and secondly whether it has to be entered into. expressly Annabhay v Ramlall and Others 1960 3 SA 802 D Ellof J as he then. was in Ally v Dinath 1984 2 SA 451 T considered an exception taken to the claim. for a universal partnership based on universorum bonorum on the ground that there was. no allegation that the agreement of universal partnership was concluded expressly. Ellof J accepted that our common law in line with the decision of Searle J in Isaacs v. Isaacs supra recognised two types of universal partnerships namely universorum. bonorum and universorum quae ex quaesty veniunt After analysing the various Roman. Dutch law authorities he concluded that there is no merit in the contention that the. universal partnership of the type known as universorum bonorum should be expressly. entered into by the parties These decisions have been followed in a very recent case. by Davis J in Sepheri v Scanlan 2008 1 SA 322 I have no reason to differ from. them and accordingly conclude firstly that the universorum bonorum has not fallen in. disuse and secondly that the universorum bonorum does not necessarily have to be. E Schrepfer v H G Ponelat, entered into expressly It can come into existence tacitly or by the conduct of the. 7 A universal or domestic partnership is akin to a marriage in community of. property H R Hahlo The South African Law of Husband and Wife 5th edition at. pages 157 158 describes marriage in community of property as follows. Community of property is a universal economic partnership of the. spouses All their assets and liabilities are merged in a joint estate in. which both spouses irrespective of the value of their financial. contributions hold equal shares, And on the reciprocal duty of support in a marriage he goes on to say at page 354 as. Divorce puts an end to the reciprocal duty of support that existed. between the spouses during marriage An existing court order for the. maintenance of the wife comes to an end So does a clause in a. separation agreement providing for the maintenance of the wife. The Evaluation, 8 With that backdrop I turn to evaluate the evidence to determine whether the. Plaintiff has made out a case for the relief she is seeking In that determination I will. rely on the facts that are common cause and undisputed the credibility of the witnesses. and the probabilities Stellenbosch Farmers Winery Group Ltd and Another v. Martell et cie Others 2003 1 SA 11 SCA at para 5 The Plaintiff is burdened with. discharging the onus on a balance of probabilities For the Plaintiff to succeed the. evidence must be such that when she closed her case an order of absolution from the. instance was not warranted The defendant s failure to testify cannot justify a verdict for. E Schrepfer v H G Ponelat, the plaintiff unless there is enough evidence to enable the court to say that having.
regard to the absence of an explanation the plaintiff s version is more probable than. 9 In support of the Plaintiff s case the Plaintiff her son Guido Tagliavini Guido. and one Lorraine Gregory Gregory testified The Plaintiff s witnesses essentially. corroborated her evidence in certain respects The Defendant closed his case without. calling any witnesses, 10 Adv De Waal Nigrini on behalf of the Plaintiff submitted that in light of the. totality of the evidence as well as the undisputed documentary evidence and the. undisputed period during which the parties lived happily and worked purposefully. towards their goal of a financially independent retirement the Defendant made the. tactical decision not to testify at his peril He submitted further that the evidence called. for an answer In disputing the existence of a universal partnership Adv Jooste on. behalf of the Defendant contended that at the very best for the Plaintiff on the. evidence it is difficult to come to any conclusion other than the Plaintiff was conducting. herself as an ordinary spouse, 11 I do not think that on the facts of this matter an adverse inference can be drawn. because the Defendant did not testify or tender any oral evidence in support of his case. The Defendant under cross examination challenged practically every vital aspect of the. Plaintiff s evidence and placed it in dispute However by not testifying when he the. Defendant was available to testify and not presenting oral evidence when such. evidence was available the Defendant took the risk of the court deciding the issues on. the oral evidence placed before it by the Plaintiff without the benefit of any oral evidence. presented by the Defendant Depending on the quality of such evidence it could be. E Schrepfer v H G Ponelat,fatal to the case of the Defendant. The Credibility, 12 With that background I now proceed to evaluate the evidence before me I will. firstly evaluate the credibility of the witnesses I do not think that the evidence of Guido. or that of Gregory was seriously challenged Although the former was the son of the. Plaintiff and the latter a friend of the son I do not get the impression that they were. trying to mislead the court They essentially gave evidence of what they saw and. observed in their dealings and interaction with the Plaintiff and the Defendant The. involvement of Gregory was of a very limited scope and for a very short period of time. It essentially involved her observation of and interaction with the parties on her two. visits to the farm as a guest Her evidence is also substantially corroborated by the. Plaintiff and Guido, 13 The involvement of Guido stretched over a much longer period and to a greater.
extent He was 16 years old when he was introduced to the Defendant He described. the Defendant as both loving and caring towards both him and his mother He was. intimately involved when the parties experienced problems in their relationship and as a. concerned son of the Plaintiff he tried to speak to the Defendant in order to resolve the. differences between him the Defendant and his mother He was also instrumental in. obtaining legal assistance for his mother and in negotiating a settlement between the. Defendant and his mother in respect of the eviction proceedings He instructed the. attorney to record the settlement in a letter which was confirmed and signed by his. mother and the Defendant His evidence is corroborated by his mother and by certain. documentary evidence No reason has been advanced by counsel for the Defendant. why the evidence of Gregory and Guido should not be accepted I accordingly accept. E Schrepfer v H G Ponelat,their evidence, 14 In contrast to Gregory and Guido the credibility of the Plaintiff was seriously. challenged by counsel for the Defendant The Plaintiff s evidence stretched over many. days in court and covered a long period of time to be exact almost 17 years She was. taken under extensive and intensive cross examination Such cross examination. essentially concentrated on the allegations contained firstly in the Founding Affidavit of. her aborted Notice of Motion proceedings in respect of the same relief and secondly. the various amendments which were sought and effected to her Particulars of Claim in. the present proceedings The Notice of Motion proceedings were aborted on the advice. of her present attorneys because of the possible disputes of fact. 15 It was put to the Plaintiff by counsel for the Defendant that she was evasive and. fabricated her evidence I do not think that such accusation was justified Her evidence. must be seen in the context in which it was given the time span over which it stretched. and the nature of the evidence that was given The Plaintiff s first language is German. Although she was reasonably fluent in English she had difficulty in understanding legal. terms that lawyers take for granted She was baffled by some of these terms such as. tacit implied express or within the contemplation of the parties and conceded. that she did not know how to answer certain questions based on such terms This is. understandable as the Plaintiff is a lay person The contention by counsel for the. Defendant that the evidence of the Plaintiff was crafted and shaped on the facts of. Sepheri v Scanlan supra is highly speculative and no basis exists for such. conclusion, 16 There were also certain errors in the pleadings which she found difficult to. E Schrepfer v H G Ponelat, explain They were obvious errors In the first place the allegation that the Plaintiff. agreed to resign from her post as personal assistant and secretary upon the. commencement of their cohabitation relationship on the facts are wrong The. undisputed facts are that the cohabitation commenced in March 1989 whereas the. Plaintiff resigned her position just before they moved to Plettenberg Bay that is in May. 1998 In the second place the allegation that they orally agreed to get married in March. 1990 was an error The Plaintiff conceded that it should read March 1989 when they. commenced their cohabitation relationship She could not explain how these errors. arose She insisted that she did not give the attorneys instructions to that effect In my. view these mistakes were either typographical errors or they were ostensibly made by. the attorneys who drafted the pleadings The Plaintiff s counsel in my opinion correctly. REPORTABLE CASE No 17318 2009 In the matter between ERICA SCHREPFER Plaintiff and HEINZ GUNTHER PONELAT Defendant 280 1 Bester v Van Niekerk 1960 2 SA 779 A at 783H 784A Purdon v Muller 1961 2 SA 211 A at 218B D The three essentials are 1 that each of the partners bring something into the partnership whether it be money labour or skill 2 that the business should be

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