Ponelat v Shrepfer (17318/2009) [2010] ZAWCHC 337 (18 October 2010)

IN

THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: 17318/2009

DATE: 18 OCTOBER 2010

In the matter between:

HEINZ

GUNTHER PONELAT ….............................................................Applicant

and

ERICA

SCHREPFER ….....................................................................Respondent

JUDGMENT (Application for Leave to Appeal) MOOSA. J: This is an application for leave to appeal against the judgment of this Court delivered in this matter on 28 Augustus 2010 in terms of which the Court found: firstly, that an universal partnership came into assistance between the parties on the basis of a tacit agreement; secondly, that the partnership was deemed to have commenced on 4 March 1998 and terminated on 1 April 2005; and thirdly, that the respondent had a 35% share in such partnership and the applicant had a 65% share in such partnership. The applicant appealed on the grounds that the evidence established nothing more than a co-habitation agreement between the parties and no universal partnership can be inferred from the evidence In addition to the claim for an universal partnership, the respondent claimed damages for breach of promise. I dismissed such claim. No counter-appeal was lodged by the respondent against my finding in respect of the claim of universal partnership and/or the ratio and in respect of the breach of promise to marry. The test which I have to apply is whether another court would come to a different conclusion to which this court had come to. To put it in another manner, whether there are reasonable prospects of success on appeal. Adv Jooste. who appeared on behalf of the applicant, submitted that the decision in Muhlmann V MOhlmann 1984(3) SA

102 (AD) may have been superceded by the constitutional imperative and the present day mores of society. The Supreme Court of Appeal may come to a different finding on the law and fact on the issues decided by me. Adv Niqrini on behalf of the respondent, on the other hand, submitted there were no prospects of success on appeal both on the facts and the law. After careful consideration, I am not convinced that another court may not come to a different conclusion on the facts and the law than the ones I came to in this matter. I therefore conclude that there are reasonable prospects of success on appeal. The further matter I am required to decide is whether the matter should be heard by the full bench of this division or the Supreme Court of Appeal. Adv Jooste contended that the Supreme Court of Appeal would be the appropriate forum to settle the issues for the following reasons: "(a) It is desirable that the Supreme Court of Appeal decisively and in view of the Constitutional imperative and the lapse of time since the reporting of the judgment in Muhlmann (supra) against the background of present day bone mores and coming into operation of the Constitution, revisit and decisively consider the cause of action premised on a tacit universal

partnership; (b) The Supreme Court of Appeal, subject to those matters for which jurisdiction has been reserved for the Constitutional Court is the final Court of Appeal and can decisively adjudicate upon the issues raised in this appeal, given the importance of this cause of action, taking into account that this particular cause of action is also a cause of action that would be available in same gender relationships." Adv Niqrini had no objection to such referral. In the circumstances, the applicant

IS

GRANTED LEAVE TO APPEAL TO THE SUPREME COURT OF APPEAL in this matter and costs of this application shall be costs in the cause. MOOSA, J

JUDGMENT

(Application for Leave to Appeal)

MOOSA. J:

This is an application for leave to appeal against the judgment of this Court delivered in this matter on 28 Augustus 2010 in terms of which the Court found: firstly, that an universal partnership came into assistance between the parties on the basis of a tacit agreement; secondly, that the partnership was deemed to have commenced on 4 March 1998 and terminated on 1 April 2005; and thirdly, that the respondent had a 35% share in such partnership and the applicant had a 65% share in such partnership.

The applicant appealed on the grounds that the evidence established nothing more than a co-habitation agreement between the parties and no universal partnership can be inferred from the evidence

In addition to the claim for an universal partnership, the respondent claimed damages for breach of promise. I dismissed such claim. No counter-appeal was lodged by the respondent against my finding in respect of the claim of universal partnership and/or the ratio and in respect of the breach of promise to marry.

The test which I have to apply is whether another court would come to a different conclusion to which this court had come to. To put it in another manner, whether there are reasonable prospects of success on appeal.

Adv Jooste. who appeared on behalf of the applicant, submitted that the decision in Muhlmann V MOhlmann 1984(3) SA 102 (AD) may have been superceded by the constitutional imperative and the present day mores of society. The Supreme Court of Appeal may come to a different finding on the law and fact on the issues decided by me.

Adv Niqrini on behalf of the respondent, on the other hand, submitted there were no prospects of success on appeal both on the facts and the law.

After careful consideration, I am not convinced that another court may not come to a different conclusion on the facts and the law than the ones I came to in this matter. I therefore conclude that there are reasonable prospects of success on appeal.

The further matter I am required to decide is whether the matter should be heard by the full bench of this division or the Supreme Court of Appeal. Adv Jooste contended that the Supreme Court of Appeal would be the appropriate forum to settle the issues for the following reasons:

"(a) It is desirable that the Supreme Court of Appeal decisively and in view of the Constitutional imperative and the lapse of time since the reporting of the judgment in Muhlmann (supra) against the background of present day bone mores and coming into operation of the Constitution, revisit and decisively consider the cause of action premised on a tacit universal

partnership;

(b) The Supreme Court of Appeal, subject to those matters for which jurisdiction has been reserved for the Constitutional Court is the final Court of Appeal and can decisively adjudicate upon the issues raised in this appeal, given the importance of this cause of action, taking into account that this particular cause of action is also a cause of action that would be available in same gender relationships."

Adv Niqrini had no objection to such referral. In the circumstances, the applicant

IS

GRANTED LEAVE TO APPEAL TO THE SUPREME COURT OF APPEAL in this matter and costs of this application shall be costs in the cause.

MOOSA, J