CORNELIS ANDRIES VAN T WESTENDE JUDGMENT. [1] The plaintiff in this matter is claiming an amount of R299

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1 IN THE HIGH OF SOUTH AFRICA (EASTERN CAPE DIVISION: GRAHAMSTOWN) In the matter between: CASE NUMBER: 259/2010 CORNELIS ANDRIES VAN T WESTENDE Plaintiff And LYNETTE CRAFFORD Defendant JUDGMENT TOKOTA AJ [1] The plaintiff in this matter is claiming an amount of R from the defendant it being alleged that the said sum was, at the special instance of the defendant, lent and advanced to her during the months of September and November The defendant denies that she owes the plaintiff the amount claimed or any amount. In the pleadings and in her evidence she admitted that she received the said sum but contended that it was given to

2 2 her as a gift. [2] During the early stages of the trial there was an application for an amendment of the plaintiff s particulars of claim by removing from paragraph 4(b) thereof the words in respect of transfer costs and substitution of the plaintiff with defendant in the last sentence of the same paragraph. There was no objection to the amendment and I granted the same. [3] The events that led to the advancement of R to the defendant are summarised hereunder. [4] The plaintiff was conducting a business of a restaurant in Pretoria and in or about April 2004 he met the defendant. A relationship developed. At the time they met, the defendant was still married but the divorce proceedings between her and her ex husband had already commenced. [5] As the relationship progressed the parties decided to live together as a result the defendant moved to the plaintiff s flat at Sunny Side in Pretoria. At that stage the defendant was working for a doctor. She was later employed by Wilgers hospital.

3 3 [5] During 2006 the plaintiff saw an advertisement of lease of Intaka Lodge, a tourism lodge situated in the Eastern Cape between Grahamstown and Kent on Sea. He came down to the Eastern Cape and later concluded a lease agreement covering a period of three years with the owner of Intaka Lodge. He took over the Lodge in August The defendant later joined him after serving a resignation notice period with her employer. [6] They continued to live together as man and wife though not married. They worked at the Lodge but the defendant was not paid any salary. The plaintiff took care of her. [7] The defendant decided to buy a property in Alexandria. They discussed this aspect and later went to Alexandria for sight seeing looking for a property of not more than R The defendant did not have money at the time but was expecting the proceeds of the division of the joint estate after divorce. The liquidator had promised her that he would advance her a sum of R shortly within a month or so. [8] In the meantime the plaintiff had sold his flat in Pretoria to

4 4 the amount of R [9] In Alexandria they identified a property worth R [10] The above summarised facts are to a large extent common cause or are not disputed. [11] According to the plaintiff they discussed the issue of payment of the purchase price at the TV room at Intaka Lodge and he agreed to advance the defendant a sum of R to be repaid back after the defendant had received her share of the husband s pension benefits. According to the plaintiff they agreed to sign an acknowledgement of debt which was later prepared by the defendant s son and was signed by her. He took possession of the acknowledgement of debt and put it in a steel cabinet in file together with the defendant s photo copy of her identity document. [12] Plaintiff testified further later the defendant had to make an application for the payment of her share of the proceeds of the pension fund and needed a copy of her identity document. As the photocopying machine was not working plaintiff had to retrieve the

5 5 acknowledgment of debt document to which was attached a copy of the defendant s identity document. He removed the copy of the identity document and such was sent by the defendant to Pension Fund with the application for payment of her share. [13] Sometime later (two weeks) the plaintiff discovered that the acknowledgement of debt and some monies had disappeared. [14] The defendant denies that there were any discussions regarding any loan of money for the purchase of the property either before or after the signing of an offer to purchase. She denies that she ever signed any acknowledgment of debt. [15] The defendant testified that on the day of signing an offer to purchase the property they had identified at Alexandria, they saw the owner of the house and spoke to him. They later went to the Estate Agent s house where she made the offer. When the offer forms were completed the Estate Agent asked who was going to pay the deposit and the plaintiff said ek sal betaal. She testified that she got a surprise because the plaintiff never told her before that he was going to pay anything for the property. She assumed (aangeneem ) that the money was a gift ( ʼn geskenk ).

6 6 [16] According to her version at no stage did the plaintiff discuss with her any loan for the purchase of the house in any amount. She made the offer as she was expecting the R mentioned above. The Estate Agent also remarked that she was a luck lady ( n baie gelukkige vrou ). She stated that even after the transaction no discussions around the loan were made and the plaintiff never indicated that he wanted his money back. [17] She testified that when she was divorcing the plaintiff undertook to lend her money to finance the legal costs of the divorce and that she was going to refund him after receiving her share of the joint estate. She testified that she was assisted to the amount of R60 000, 00 by the plaintiff and she repaid the amount back to him. [18] The Estate Agent Anna Marie Janse van Vuuren was called as a witness by the defendant. She also testified that at the time of signing the offer to purchase the plaintiff said ek sal die balans betaal. She testified that she too assumed that the plaintiff was making a gift to the defendant hence she remarked that she was a lucky lady.

7 7 [19] According to the offer form which was signed by the defendant on 18 September 2007 paragraph 1.a. thereof reads: (t)he purchase price is R ,00 (Four hundred and ninety nine thousand Rands ) payable as follows; a. A deposit of R ,00 on signature of deed of sale to be paid to the transferring attorneys and held by them in trust pending registration of transfer, subject to the provision contained in clause 5 below. Interest on such deposit will be for the benefit of the purchaser Clause 13 d. reads R balance to be paid by 30 November 2007 or before. [20] The defendant was later paid by the liquidator an amount of R in November She was then short of R The plaintiff borrowed this R from his sister and paid it on behalf of the defendant. [21] It is common cause that the plaintiff paid an amount of R towards the purchase price of the property bought by the defendant. The first payment was R which was paid as a deposit and R which was paid as a balance of the full

8 8 purchase price. The issue to be decided by this court is whether the said amount was a loan, as claimed by the plaintiff, or a gift, as claimed by the defendant. [22] During argument both Counsel for the plaintiff and attorney for the defendant referred me to a decision of this division by a Full Bench. 1 In that case the Learned Judge Leach J, as he then was, stated that it is important to bear in mind at the outset that the socalled 'presumption' against donations is founded upon it being extremely unlikely that a person will squander or give away his property gratuitously or out of pure liberality - see, for example, Twigger v Starweave (Pty) Ltd 1969 (4) SA 369 (N) at and the cases there cited. The presumption is then really no more than an inference of fact dependent upon ordinary reasoning and common sense. However, each case must be determined by its own facts and circumstances and, as was remarked by Stratford ACJ in R v Fourie and Another 1937 AD 31 at 44, presumptions of fact are as numerous as the facts on which they are founded. As a result, in S v De Bruyn en 'n Ander 1968 (4) SA 498 (A) at 507F Holmes JA declared that the law has been moving away from the notion of so-called presumptions arising from selected facts 1 See Barkhuizen v. Forbes 1998(1) SA 140 (E)

9 9 because they involve piecemeal processes of reasoning and rebuttal - see further, for example, Acar v Pierce and Other Like Applications 1986 (2) SA 827 (W) at 832H--I. D. By majority it was held that where the plaintiff claims the recovery of money which he contends was a loan he bears the overall onus to prove his claim without being assisted by the defendant being obliged to prove that the disputed amounts were in fact donations, on the basis that the presumption against donations is not a legal presumption but is, at most, a rebuttable presumption of fact or an inference which may be drawn depending upon the circumstances of the case. I accept the legal position regarding onus. [23] If one has regard to the circumstances of the present case and the evidence of the defendant and her witness the plaintiff never said that the said amount was a gift. They merely assumed that it was a gift. The basis for this assumption as testified by the defendant is that, (a) the plaintiff never discussed with her that he would loan the amount in question prior to the date of signing the offer. (b) the plaintiff never demanded the money after the transaction nor discussed it with her until he issued summons. (c) she was taken by surprise when the plaintiff said ek sal

10 10 betaal after it was asked who was going to pay the deposit. (d) she had previously discussed the repayment of the moneys advanced to her for the divorce legal costs and had infact repaid the plaintiff after she got her share from the divorce distribution of the joint estate. (e) although she did not have money when she signed the offer she was expecting a sum of R from the liquidator Mr Jordan. When she got R instead of R the plaintiff signed a cheque for R [24] Ms Janse van Vuuren testified that the plaintiff said ek sal die balans betaal and she also assumed that this was a gift. [25] If regard is had to the two versions it is possible that the defendant was referring to the payment of the deposit of R whereas when the defendant s witness referred to the balance, she must have been referring to the balance of R The two versions therefore do not reconcile. [26] The plaintiff denied that he ever uttered the words referred to above and maintained that the payment of the said deposit was in accordance with his agreement referred to above with defendant.

11 11 [27] It was submitted on behalf of the plaintiff that the payment of the deposit of R was in accordance with the agreement reached between the parties. The argument, as I understood it, went on further that even if the plaintiff said I will pay that that was reconcilable with a prior agreement. At the time of the signing of the offer the defendant had no money and that it is highly improbable that she would undertake to pay the deposit when she had no money. It was therefore submitted that I should reject her version and accept that of the plaintiff on the basis of probabilities. [28] Under cross-examination the defendant added another reason why the money was given to her. She testified that she had worked for the plaintiff at the Intaka Lodge without being paid a salary. She had contributed a sum of R towards the running of the business. The amount of R was therefore a consideration of those contributions. [29] In my view it highly improbable that the plaintiff would agree (as stated by the defendant) only to be reimbursed for divorce

12 12 legal costs and give a huge amount of R as a gift when he did not have money. I accept his version that he borrowed R from his sister in order to help the defendant. The probabilities are that if he wanted reimbursement of his expenses towards the legal costs of the divorce he must have done so also in the purchase of the house. [30] It was submitted on behalf of the defendant that there was no contradiction between the evidence of the defendant s witness and the defendant. The body language, so the argument ran, of the defendant at the time when the plaintiff said he was going to pay was consistent with the assumption that the money was being given as a donation. The defendant got excited and even kissed the plaintiff. [31] It is true that when parties are in a relationship they give each other gifts. Huge donations are possible especially when the parties are married. The same is not always true when the parties are not married. Having listened to the evidence of all the parties in this matter and having observed their demeanour I am satisfied that the plaintiff was an honest witness. I am mindful of the fact that his evidence had some lapses but taking into account the

13 13 lapse of time and the all circumstances of the case, I am satisfied that his evidence was satisfactory in material respects. [32] I was not impressed by the defendant and her witness. Their versions changed to suit the situation. It was submitted that Ms Van Vuuren was a biased witness who contrived her evidence to accord with that of the defendant. I agree. In my view if she was not biased why would she make an assumption of a donation in a situation like this. Why would she not think that the matter was discussed by the parties. The inference she drew was not the only one. [33] In any event if one takes the version of the defendant as being correct she conceded that the plaintiff never said that the amount was a gift. It is highly improbable that he would sell his flat for R only to give away as a gift almost R thereof. I am therefore satisfied that the plaintiff has discharged the onus resting upon him and therefore is entitled to judgment. [34] In the circumstances, I therefore make the following order: 1. The defendant is ordered to pay the plaintiff the amount of

14 14 R The defendant is ordered to pay interest thereon calculated at the rate of 15,5% p.a. from the date of summons to date of payment. 3. Defendant is ordered to pay costs of suit. B R TOKOTA ACTING JUDGE OF THE HIGH COURT Date of Hearing: 7 & 9 March 2011 Date of Judgment: 16 March 2011

15 15 APPEARANCES For the Plaintiff: Adv. D H DE LA HARPE Instructed by: Whitesides Attorneys, 53 African Street, Grahamstown, Tel: , Ref: Mr. G Barrow For the Defendant: Mr. J Van Onselen Instructed by: McCullum Attorneys, Office No 10, Fidelity Building, 87 High Street, Grahamstown, Tel: ; Ref: MG McCullum