IN THE HIGH COURT OF SOUTH AFRICA 
[WESTERN CAPE HIGH COURT, CAPE TOWN]

Case number: 20255/2012

In the matter between:

and

JUDGMENT DELIVERED THURSDAY, 23 AUGUST 2012

Le Grange. J:-

[1] This is as an action for divorce in which the main dispute centres around two properties which are registered in the names of both parties as co-owners. These two properties are adjacent to each other at 45 and 43 Granula Place, Sunset Beach, Milnerton in the City of Cape Town ("herein after referred to as No. 45 and No. 43 respectively").

[4] Mr T Moller appeared for the Plaintiff and Ms J S Anderssen for the Defendant.

[5] Two witnesses testified for the Plaintiff. The Plaintiff himself and an attorney, Michael Kotze, the conveyancer in respect of the transfer of the half share in 43 Granula Place to the Defendant.

[6]    The Defendant decided not to testify or to call any witnesses.

[9] The relevant facts underpinning the Plaintiff's case can be summarised as follows: In respect of No. 45, he made a written offer to purchase the property, subject to the condition that he sells one of his Blaauwberg Heights flats. According to the Plaintiff, during April 1996, the estate agent had asked whose names should appear on the deed of sale as the purchaser/s. This came about as he was obliged to waive the condition relating to the usual 72 hour clause under which he initially made the offer. It was at that point he asked the Defendant, in order to give her an opportunity to buy the property, whether she was prepared to pay 50% of the expenses of the property, to which she agreed. He then informed the estate agent that the house also belonged to his wife. It is not in dispute that the Plaintiff paid the purchase price in respect of No. 45 and most of the expenses of the property.

[11] In respect of No. 43, the Plaintiff testified that he had bought the property with his pension monies. According to him the property was initially registered in his name. His further evidence is that the Defendant acquired a half share at a later stage by virtue of a transfer to this effect, although the Plaintiff disavows any recollection of having signed either a deed of sale, or the power of attorney necessary to affect the transfer. According to the Plaintiff during 2003 he and the Defendant had a discussion regarding her buying a half share in No. 43. This discussion apparently arose after the Defendant proposed they develop the said property and in return she would then buy a half share, which funds the Plaintiff could utilise towards the proposed development. The Plaintiff's version is that nothing ever came of this. He apparently became aware of the transfer to the Defendant in December 2010 upon attending at the Deeds Office, where he saw the deed of transfer. The further evidence of the Plaintiff is that both parties began to contribute towards the costs of building and eventually completed the house which now stands on No.43.

[15] Under cross-examination the Plaintiff confirmed that he is very prudent with money and dislikes debt. In fact he stated that he married the Defendant out of community of property without the accrual due to his fear that he may incur the obligations of a spendthrift wife, as this had been the position with his former wife. He admitted that the Defendant was very prudent in this respect and he trusted her.
[16] In the absence of any evidence on the part of the Defendant, the only version is that of the Plaintiffs to consider whether the terms of the two joint ventures as pleaded have been proven on a balance of probabilities.

17.2. The plaintiff's funds, which included the proceeds from the sale of a Blouberg Heights flat which was registered in his name, would be used to acquire No. 45 Granula Place;
17.3. The parties would contribute equally to the costs of future maintenance and reasonable improvements of the property; and

20.1. The defendant would buy an undivided half share in No. 43 Granula Place (a vacant plot) from the plaintiff for R300 000;
20.2. The parties would contribute equally to the building costs as well as any future reasonable improvements or maintenance of the improvement; and

[21] In respect of No. 43, what is of significance is that the deed of transfer registering the Defendant's half share of the property refers to a deed of sale. The Defendant's version was put to the Plaintiff. According to the Defendant, she took the Plaintiff to the attorneys' office for the purpose of executing the deed necessary to proceed with the transfer. In terms of the title deed, the Defendant acquired her half share in the property by virtue of a sale having been concluded between the parties. The Plaintiff denied that he signed this deed of sale at the attorneys' office. Despite this denial, the signed deed remains in direct contrast to the assertions made by the Defendant that her half share was a donation. Kotze's evidence can also not be ignored. On his version it would not have benefitted either party to have simulated a sale when the parties in fact intended it to be a donation, as there would have been no tax payable. In this respect Counsel for the Plaintiff referred to section 56(b) of the Income Tax Act, 58 of 1962.

[23] In respect of costs, the ordinary rule is that costs should follow the event. In this instance the Plaintiff was only partially successful. In view of this I consider a more just and equitable costs order to be one where each party should pay its own costs.

[24]   In the result the following order is made:
24.1. The Plaintiff's Claim A is dismissed and Claim B succeeds. The Defendant's Claim in Reconvention as Amended is dismissed.
24.2. Each party to pay its own costs.

LE GRANGE, J