Nongauza v Nongauza and Another (805/2008) [2009] ZAECHC 6 (29 January 2009)

IN

THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION) CASE No: 805/2008

DELIVERED ON : 29/01/2009

In the matter between

NONTSIKELELO NONGAUZA Applicant

And

THABO NONGAUZA 1st Respondent

SIFANELE JOSIA GABADA 2nd Respondent

EX TEMPORE JUDGEMENT

NHLANGULELA, J. :

[1] This is a Return Day of the Rule Nisi, dated 27 June 2008, which was issued with interim orders that, inter alia, pending a further directive of this Court, the second respondent pay a sum of R100 000,00 into the Trust Account of the applicant’s attorneys Mgweshe Ngqeleni Attorneys.

[2] The facts of the application appear from the affidavits together with annexures thereto which were filed on behalf of the parties.

[3] In my understanding of the application the main issues to be decided are whether :

(a) The sum of R100 000,00 in question is the asset of the joint estate between the applicant and first respondent; and

(b) If so, whether the applicant is entitled to a half share of such estate.

[4] The following summary of the facts is either common cause or at least not disputed.

On 05 July 1996 the applicant and first respondent were married to each other in community of property. They declared that they will both share in the profits as well as losses incurred during the subsistence of the marriage. Most unfortunately, the marriage

was to be short lived as it was dissolved by a decree of divorce on 23 November 2006. This happened at a time when they had four

children born between them and having amassed some wealth of which a fuel and oil business called Siyakhula Truck Inn is a part.

[5] On 30 May 2008, after the divorce but before a formal division of the joint estate had taken place, the first respondent sold Siyakhula Truck Inn (Siyakhula) to the second respondent at R300 000,00. This business was sold as a going concern. At the time that these proceedings were launched the second respondent had already paid a cash sum of R200 000,00 directly to the first respondent. Pursuant to the order of this court the balance of R100 000,00 was paid in the Trust Account of Mgweshe Ngqeleni Attorneys. The money is still being kept there.

[6] The second respondent has not opposed the relief sought. The first respondent is resisting the relief sought on a number of factual and legal grounds such as that :

(a) Siyakhula is not the asset of the joint estate because the applicant was never involved in its management and operations.

(b) Siyakhula is the business of Elegant Square Trading C.C., a legal persona which has a separate existence from the parties in the joint estate.

(c ) Therefore, the purchase price of R300 000,00 is an asset of the C.C. to which the applicant is not entitled.

[7] There are many other grounds which were advanced both on affidavit and argument which, in my opinion, need not be dealt with for the purposes of this judgment because they are peripheral to the issues at hand. For that reason I do not consider it necessary to deal with all the submissions advanced on behalf of the parties which have a bearing on the issues which I consider to be peripheral.

[8] There is not much to be learnt from the old statement of law that assets which have been accumulated, including the businesses established, by the parties whilst still married in community of property fall into the joint estate with the result that a claim by either party for an equal share (i.e. half share) of the assets becomes an incidence of the marriage being in community of property – See the case of Conway v Conway 1966 (4) SA 225 (RAD) at 230 E – F. This case has persuasive force in our jurisdiction.

[9] With that much having been said the determination of the identified issues swings on the facts of the application. Accordingly, I proceed to examine the relevant facts.

[10] The sum of R100 000,00 is part of the R300 000,00 purchase price for Siyakhula. It is not disputed that the first and second respondent regulated their agreement of sale in terms of the “Memorandum of Agreement” which is annexure “RW 7” and attached to the founding affidavit. This written agreement is not at all a model of good draftsmanship in that it does not describe or identify the subject matter of the sale with much clarity as would be required of an agreement involving a huge sum of money. The closest the memorandum comes to regarding the subject matter is the definition of business as : “means selling of petrol and motor oil as was carried on by the Seller as a going concern as at the effective date, and does not include the business assets and liabilities”. On affidavit both parties agree, albeit indirectly, that it was Siyakhula that was being sold. Nowhere in the memorandum does the name of the C.C. appear. The Seller is cited as the first respondent in his personal capacity thus indicating that the sale of the business of fuels and oil was the subject matter of the sale.

[11] I have also perused a registration certificate of the CC which was obtained from Cipro. This is annexure “TN2” to the answering affidavit. This document shows only that the enterprise name is Elegant Square Trading 101 CC. Yet the applicant stated categorically that Siyakhula is the business which was never owned by the CC. In so far as the disputed fact that Siyakhula is

the business of the first respondent, and in that way part of the joint estate, I find that the version of the applicant does pass

muster in terms of the rule in the case of Plascon – Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A). In this regard the version proffered by the first respondent lacks in credibility so much that it can be rejected as false.

[12] I find that Siyakhula is a personal business of the first respondent which cannot by any stretch of imagination be regarded as a legal persona divorced from the joint estate. In this connection it may also be added that the fact that the R200 000,00 was deposited into the account of the first respondent reinforce my finding. As I have already stated the claim of the applicant for a half share of the R300 000,00 is the incidence of her marriage with the first respondent in community of property.

[13] Accordingly, the applicant should be successful in her application. However there is a problem regarding the direction that the Court may give concerning the R100 000,00. It is clear from the papers that there is no formal winding up of the joint estate in place and the parties have never been able to arrange between themselves the distribution of the joint estate. The applicant did not ask the Court to make a distribution of the joint estate. The procedure of the appointment of the liquidator/receiver in terms of the methods as outlined in Revill v Revill 1969 (1) SA 325 (C) and Van Onselen N.O. v Kgengwenyane 1997 (2) SA 423 (B) was not applied.

[14] I have given anxious consideration to the submission by Mr Noxaka, who appeared on behalf of the first respondent, that a suitable directive is one where the R100 000,00 and the R200 000,00 may be kept into the Trust Account until the liquidator/receiver has been appointed. I have difficulties with this proposal because the mechanisms for compelling the first respondent to pay into the Trust Account may be frustrated due to the fact that the whereabouts of the R200 000,00 are unknown. This may very well be the debt to be collected, if needs be, in the normal way. Further, the dispute in this matter concerns the sum of R300 000,00 which is likely to be the only remaining asset in the joint estate. Therefore, I intend to keep to the facts which have been placed before me on affidavits. In doing so, it will be equitable to make the order that the R100 000,00 be paid to the applicant.

[15] What remains is the issue of costs. The general rule is that the costs should follow the event. I have not been persuaded otherwise. I am also mindful of the fact that there are no other assets which have been shown to be in existence in the joint estate. An order that the costs be paid out of the estate may very easily be a useless thunderbolt. The first respondent should be liable to pay the costs.

[16] In the result, I make the order that :

The sum of R100 000,00 be and is hereby paid to the applicant.

The costs of this application shall be paid by the first respondent.

________

Z M NHLANGULELA

JUDGE OF THE HIGH COURT

For the Applicant : Mr Ngqeleni of

Mgweshe-Ngqeleni Attorneys MTHATHA

For the First Respondent: Mr Noxaka of

A.F. Noxaka & Co

MTHATHA