Khabeer v Sene and Others (2006/56669) [2008] ZAGPHC 453 (22 August 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

Case No.: 2006/56669

Date:22/08/2008

In the matter between:

ABDUL MOOSA KHABEER......................................................................Applicant

and

TEMBI MOUSSOUN SENE..........................................................First Respondent

JIVAN KALIANJEE SHIRISHKUMAR.....................................Second Respondent

R BEKKER …................................................................................Third Respondent

JUDGMENT

MEYER, J:

[1] The applicant seeks the construction or correction of an order given by my brother Horn J in this division pursuant to an action in which the present applicant was the plaintiff and the first respondent the defendant. I refer to them herein as they were referred in the action proceedings.

[2] The issues between the parties were thus formulated in the judgment:

‘The plaintiff instituted action against the defendant for eviction. It is common cause that the plaintiff is the registered owner of the immovable property situated at 9 Alamaine Road Robertsham. It is further common cause that the defendant is occupying the property at present. The defendant has pleaded a universal partnership and has counterclaimed. In the counterclaim the defendant alleges that she and the plaintiff were married to each other on 31 August 1996 in accordance with Islamic custom. The said marriage lasted until 28 September 2005 and was terminated by divorce. It is alleged by the defendant that at the commencement of the marriage, or alternatively during the marriage the parties entered into an express alternatively tacit partnership agreement. The terms of the agreement are set out in the counterclaim. The defendant in the counterclaim claims a declarator that such partnership existed during the period 31 August 1996 to 28 September 2005. She seeks an order confirming the dissolution of the partnership as from 28 September 2005 and a further order for the appointment of a liquidator to realise the partnership assets and to distribute the assets equally between the parties.’

[3] The trial lasted for a few days and the order made in the action reads:

The plaintiff’s claim in convention is dismissed with costs.

The defendant succeeds with the claim in reconvention.

It is declared that a partnership existed between the plaintiff and the defendant at the rate of 20 percent for the defendant and 80 percent for the plaintiff during the period 31 August 1996 to 28 December 2005.

It is declared that the aforesaid partnership dissolved on 28 September 2005.

A liquidator shall be appointed with authority to realise the partnership assets, to liquidate the liabilities of the partnership, to prepare a financial account in respect of such realisation and liquidation of the partnership assets, and to pay the parties whatever is owing to them in accordance with the proportionate rates specified in paragraph 2.1 above.

3. The plaintiff shall pay the defendant’s costs in reconvention.

[4] The issue as to whether or not the order should be corrected, altered or supplemented was heard by my brother Horn J. He was of the view that it should not. Counsel for the plaintiff, Adv. L Kok, and for the defendant, Adv. JF Roos SC, informed me that Horn J was of the view that he did not overlook or inadvertently omit any matter and that his judgement or order required no clarification. He made no order in respect of this application.

[5] Both counsel were ad idem that I should adjudicate the relief that the plaintiff seeks in the first subparagraph of paragraph 1 of the notice of motion, which is declaratory relief requiring the interpretation of the order, since the realisation and liquidation of the partnership assets and liabilities are presently delayed and frustrated by reason of a dispute between the plaintiff and the defendant on the proper interpretation of the order.

[6] The interpretation for which the plaintiff contends accords with the judgment and order is ‘…that none of the assets acquired by any of the parties before 31 August 1996 is included in the partnership assets, and that only the estate built up by the partners from the profits of the partnership between that date and 28 September 2005 constitutes the partnership estate referred to in that order.’

[7] The interpretation for which the defendant and the liquidator contend accords with the judgment and order appears from what was put to the plaintiff by Mr Ziman, who acts on behalf of the liquidator in an enquiry, which is held in the realisation and liquidation of the partnership. He said that ‘[t]he Liquidator intends to look at all your assets as they existed as at 28 September 2005, regardless of when you acquired them. If you acquired them 30 years ago and you still owned them as at 28 September 2005, then the liquidator is going to regard that as an asset that must be shared 80 percent to you and 20 percent to MS SENE. And the same with her. Whatever asset she’s possessed of at 28 September 2005, regardless of when she acquired them, the liquidator is going to give you 80 percent of the net amount, after deducting liabilities.’

[8] The approach in interpreting a court’s judgment or order was thus stated by Trollip JA in Firestone South Africa (Pty) Ltd v Genticuro A. G. 1977 (4) SA 298 (A.D.), at p 304 D-H:

“The basic principles applicable to construing documents also apply to the construction of a court’s judgment or order: the court’s intention is to be ascertained primarily from the language of the judgment or order as construed according to the usual, well-known rules. See Garlick v Smartt and Another, 1928 A.D. 82 at p. 87; West Rand Estates Ltd. v. New Zealand Insurance Co. Ltd., 1926 A.D. 173 at p.

188. Thus, as in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention. If, on such a reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify, or supplement it. Indeed, it was common cause that in such a case not even the court that gave the judgment or order can be asked to state what its subjective intention was in giving it (cf. Postmasburg Motors (Edms.) Bpk.. v Peens en Andere, 1970 (2) S.A. 35 (N.C.) at p. 39F-H). Of course, different considerations apply when, not the construction, but the correction of a judgment or order is sought by way of an appeal against it or otherwise – see infra. But if any uncertainty in meaning does emerge, the extrinsic circumstances surrounding or leading up to the court’s granting the judgment or order may be investigated and regarded in order to clarify it; for example, if the meaning of a judgment or order granted on an appeal is uncertain, the judgment or order of the court a quo and its reasons therefor, can be used to elucidate it. If, despite that, the uncertainty still persists, other relevant extrinsic facts or evidence are admissible to resolve it. See Garlick’s case, supra, 1928 A.D. at p. 87, read with Delmas Milling Co. Ltd. v Du Plessis, 1955 (3) S.A. 447 (A.D.) at pp 454F- 455A; Thomson v. Belco (Pvt..) Ltd. and Another, 1960 (3) S.A. 809 (D).”

[9] Adv Kok on behalf of the plaintiff submitted that, on a proper interpretation of the judgment and order, the universal partnership

found to exist was one universorum quae ex quaestu veniunt, and adv Roos SC on behalf of the defendant submitted that it was one universorum bonorum.

[10] Our law recognises two types of universal partnerships - the partnership universorum bonorum [see: Annabhay v. Ramlall and Others 1960 (3) SA 802 (D&CLD); Ex parte Sutherland NO 1968 (3) SA 511 (W); Ally v Dinath 1984 (2) 451 (TPD)], and the partnership universorum quae ex quaestu veniunt [see: Fink v Fink and Another 1945 WLD 226; Isaacs v Isaacs 1949 (1) SA 952 (C); V v De Wet N.O. 1953 (1) SA 612 (OPD); Annabhay v. Ramlall and Others 1960 (3) SA 802 (D&CLD); Muhlmann v Muhlmann 1981 (4) SA 632 (WLD); Mühlmann v Mühlmann 1984 (3) SA 102 (AD)].

[11] The partnership universorum bonorum is one ‘… by which the contracting parties agree to put in common all their property, both present and future’ and it ‘…covers all their acquisitions whether from commercial undertakings or otherwise.’ The partnership universorum quae ex quaestu veniunt is one by which the parties ‘… thereby contract a partnership of all that they may acquire during its continuance, through every kind of commerce. They are considered to enter into this kind of partnership where they declare that they contract together a partnership without any further explanation.’ [Isaacs v Isaacs (supra) at p 955; V v De Wet N.O. (supra) at pp 614H – 615A; Annabhay v. Ramlall and Others (supra) at p 805A – G; Ally v Dinath (supra) at p 453D – G].

[12] I am of the view that, on a reading of the order and the trial court’s reasons for giving it as set out in the judgment, the partnership declared to have existed between the parties during the period 31 August 1996 to 28 September 2005, was not one universorum bonorum.

[13] Adv Roos submitted that the authorities relating to universal partnerships between spouses referred to and relied upon by the trial court in its judgment, and particularly the Muhlman case (supra), support the interpretation that is contended for by the defendant. I disagree. The decided cases referred to were relied upon by the trial court as authority for the recognition in our law of partnerships between spouses provided the requisites of a partnership had been established, and not in support of any finding as to whether or not assets acquired through individual efforts prior to the formation of the partnership are to be included in the partnership. The trial court also referred to and relied upon the Muhlman case, where the court in turn relied upon the principles enunciated in Fink, as authority for the principle that upon dissolution of the partnership each party should get a proportionate share of the assets according to their contributions.

[14] In any event, the assets of the universal partnership that was found to have existed in the Muhlman case were a particular electroplating business that had already been established by one of the spouses at the time of their marriage, its goodwill and assets, and certain further assets purchased from the profits of that business after their marriage. In contrast, the interpretation contended for by the defendant in the present matter is that the assets acquired by each party, also all those acquired before the marriage or the formation of the partnership, be regarded as jointly held. Also in contrast, no declaratory order of the specific assets included in the partnership was made by the trial court, and it appears from the issues defined in the judgment that no such relief was sought [compare: Fink v Fink and Another (supra); Isaacs v Isaacs (supra); V v De Wet N.O. (supra); Muhlmann v Muhlmann (WLD) (supra); Mühlmann v Mühlmann (AD) (supra)].

[15] The other decided cases referred to in the judgment also do not support the defendant’s contention. Fink (supra) concerned a diary business that was started and built up by the joint endeavours of two spouses who were married out of community of property. Isaacs concerned an immovable property that represented the sole remaining unconsumed profits of a universal partnership which was found to have existed between two spouses who commenced married life with no assets and who both had engaged in commercial activities during their marriage. V v De Wet N.O. (supra) concerned a partnership universorum quae ex quaestu veniunt [see: pp 614E – 615A].

[16] In finding the existence of a universal partnership between the plaintiff and the defendant, the trial court said that the plaintiff and the defendant ‘…lived together, worked together and entered into property deals together clearly with the intention for their mutual benefit. Any profit to be made was for the benefit of both of them.’ [emphasis added]. The ‘profit to be made’, in my view, refers to profit made during the subsistence of the partnership.

[17] In determining the proportionate shareholding of the plaintiff and of the defendant in the partnership, the trial court took into account that the plaintiff was already an established businessman at the commencement of the partnership, that he played the dominant role in the partnership and in the administration of the business, and that the business demanded much more from him. The trial court took into account that the ‘… defendant’s contributions viewed against the market value of the assets acquired during the period of the partnership were relatively minor.’, and particularly that she made no financial contribution from 1996 to 1998 and approximately R300 000 over the period that the partnership existed, and that the defendant’s assistance in the business of the plaintiff was minimal.

[18] Also, in dismissing the plaintiff’s claim of eviction, the trial court said that the ‘… evidence revealed that the property concerned was acquired during the subsistence of the partnership. Consequently the plaintiff was not entitled to have the defendant evicted from the property notwithstanding that the property is registered in his name. On the facts the defendant owns an undivided share in the property by virtue of her position as partner.’

[19] Reading the judgment and order as a whole, I am of the view that the trial court’s intention was that the profits made and assets acquired during the subsistence of the partnership comprised the partnership assets. The consensus of the parties was found to have been that they would both benefit by the profit made during the subsistence of the partnership. The defendant’s contribution to the partnership was measured against the market value of the assets acquired during the period of the partnership. The property from which the defendant’s eviction was sought was considered a partnership asset because it was acquired during the subsistence of the partnership.

[20] Adv Roos submitted that this application should be dismissed for the simple reason that more than a reasonable time has elapsed

between the granting of the order on 14 February 2007 and the launching of the application on 15 January 2008. An application,

such as the present one, should, so it was submitted, only be considered if the court is approached within a reasonable time of

pronouncing the judgment or order, and, in support of these submissions, reliance was placed on Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (AD), at p 306H, and First national bank of Southern Africa ltd v Van rensburg NO & others: in re First national Bank of Southern Africa Limited v Jurgens & others 1994 (1) SA 677 at p 681B – G.

[21] The principle referred to and accepted in the authorities relied upon is that a court may in certain circumstances, either

under the common law or under the Uniform Rules of Court, correct, alter or supplement its judgment or order provided the court is approached within a reasonable time of its pronouncing the judgment or order. It is the interpretation, and not the correction of the judgment or order, which is required in deciding the declaratory relief claimed in the first subparagraph of paragraph 1 of the notice of motion in order to resolve the present impasse that has arisen in the realisation and liquidation of the partnership assets and liabilities.

[22] In the result the following order is made:

It is declared that the assets of the universal partnership, which was found to exist between the applicant and the first respondent in terms of the court order that was made by the Honourable Mr Justice Horn on 14 February 2007 under case number 06/5669, do not include the assets acquired by any of the parties before 31 August 1996, and that only the estate built up by the partners from the profits of the partnership during the period 31 August 1996 to 28 September 2005 comprise the partnership estate.

The costs of this application, including the costs of senior counsel who acted for the first respondent, are to be costs in the

realisation and liquidation of the partnership assets and liabilities.

P.A. MEYER

JUDGE OF THE HIGH COURT

22 August 2008