THE COURT OF APPEAL FOR SWAZILAND HELD AT MBABANE
CASE NO. 9/93
the matter between:
ELIZABETH MALAZA Appellant
LONDUMO MALAZA Respondent
case commenced in the High Court before Dunn J. The notice of motion
asked for an order declaring that a partnership existed between the
Applicant (the present Respondent) and the late Henry Bhutana Malaza,
in equal shares, in respect of a farm in the Hhohho district, and
directing the Respondent as the Executrix Dative of Mr
estate to transfer her half share of the farm to her.
facts briefly stated were as follows:
deceased was married to the Respondent (the present Appellant) , to
whom I shall henceforth refer to as "the Appellant", by
civil rights in community of property in 1956. One son and three
daughters were born of the marriage.
1972 the deceased began to live with the Applicant (who I shall
henceforth refer to as "the Respondent") . The Respondent
alleges that she was married to the deceased in 1975, in accordance
with Swazi law and custom. In 1986 the farm (Portion 2 of Farm No.
950) was bought in the deceased's name. He and the Respondent moved
to live on it, and remained there until his death in 1991. The
Respondent still lives there. She contends that although the
transaction was undertaken in the deceased's name only, there was a
tacit partnership agreement between her and the deceased in regard
to the farm, and that in various ways they each contributed equally
to the acquisition of the farm, its development and maintenance.
Respondent's case as set out in her affidavits (and later confirmed
during her evidence viva voce) is that in July of 1990 or
thereabouts, because of the deteriorating state of the deceased's
health, he and she agreed to subdivide the farm in order to enable
him to leave his half share to his four sons, two of whom he had by a
third relationship. The Respondent contends that the remaining
portion on which the dwelling house stands, was to be retained by her
as her half share interest in the property. To this end, a plan of
subdivision was prepared and an application was made during 1990
to the Natural Resources Board for approval of the subdivision.
The letter of application dated 1 August 1990 and the plan were
annexed to the Respondent's founding affidavit. The letter referred
to four sub-divisions each of four hectares. The given reason for the
sub-division was that the owner wished to distribute land to his
sons. The plan, the significance of which I will return to later in
this judgment, shows that the effect of the sub-division was to
produce not four smaller lots but five, the latter being referred to
as the remaining portion of the farm, and the extent thereof being
5.5830 hectares. This latter portion is the part of the farm claimed
by the Respondent as her half share and is also, as I have said, the
portion on which the dwelling house stands.
application was refused by the Board on 7 December 1990 but after the
deceased's death, at the instance of both the
and the Respondent, an appeal was lodged, which was successful.
main point in issue before Dunn J, was whether or not there was a
tacit partnership between the deceased and the Respondent as the
latter contended for. Dunn J was of the view that viva voce evidence
was necessary and the matter was accordingly referred to oral
evidence on the question of:
Respondent's marriage to the deceased (in the affidavits this is
alleged partnership agreement between the Respondent and the
due course, the matter came before the learned Chief Justice, who
after hearing the evidence of, inter alia, the Appellant and the
Respondent allowed the claim of the Respondent and ordered the
Appellant to pay the costs. The order made by Hull CJ was that:
partnership existed between the Respondent and the deceased in equal
shares in respect of Portion 2 of Farm No. 950 situate in the Hhohho
district, measuring 21.5880 hectares.
the Appellant in her capacity as the Executrix Dative in the estate
of the deceased, to take all such steps as may be necessary to give
to the Respondent her half share of the aforementioned farm.
the matter was sent to evidence by Dunn J, the Appellant waited until
the decision of Hull CJ, before noting her appeal against the rulings
of Dunn J and Hull CJ. In the circumstances this seems to me to have
been a reasonable approach, and therefore, without deciding that this
was permissible, and indeed without deciding that Dunn J's order was
appealable at all, I think we should consider counsel's argument on
the merits of the matter.
points raised by Mr Shilubane on behalf of the Appellant, may
conveniently be summarised as follows:
for the Respondent's claim to half of the farm to be valid she had
to have been a signatory to the Deed of Sale, or at least, if it is
alleged that the deceased was her agent, he had to have been
authorised by her in writing to enter into the agreement on her
is because of the provisions of section 31 of Act No. 8 of 1902 (the
Transfer Duty Act) which reads:
contract of sale of fixed property shall be of any force or effect
unless it is signed by the parties thereto or by their agents duly
authorised thereto in writing".
the question of the validity of the Deed of Sale was in issue, the
above would be a relevant consideration. However, in this case, there
is no question regarding the validity of the sale. All that is in
issue is whether, at the time that he purchased the farm, the
deceased had agreed that he and the Respondent would be partners in
the farm and the business they intended to carry on in exploiting the
farm - and did carry on albeit on a very small scale.
an agreement of partnership does not have to be in writing and
provided she proved the tacit agreement alleged the Respondent would
be entitled to her due share in the assets of the partnership, namely
the farm which was admittedly registered in the name of the deceased.
far as the onus of proof is concerned, Mr Shilubane has conceded,
rightly in my view, that all that is required and the true enquiry is
simply whether it is more probable than not that a tacit agreement
had been reached. In this regard see Muhlmann v Muhlmann 1984 (3) SA
102 (A) at 124C and Charles Velkes Mail Order 1973 (Pty) Ltd v
Commissioner for Inland Revenue 1987 (3) SA 345 (A) at 357H. In the
latter case the learned judge in talking about the question of
to be drawn from the facts in relation to a tacit agreement says the
would be apparent that the main thrust of the argument was that a
tacit agreement (in respect of each catalogue) was concluded. This,
on one of the recognised tests, is established where, by a process of
inference, it is found that the most plausible conclusion from all
the relevant proved facts and circumstances is that a contract came
into existence ... ".
the learned judge refers to several authorities including that of
Muhlmann v Muhlmann to which I have already referred. I will return
to the evidence regarding the partnership later in this judgment.
next point raised by Mr Shilubane is that the deceased and the
Respondent's relationship was bigamous having regard to the fact that
the Appellant was married according to the Civil Law in 1956 and
while that marriage still subsisted, and to their knowledge the
deceased and the Respondent entered into a customary union.
so the submission went, the second marriage was bigamous and contra
bonos mores and no action could be entertained which arose from that
relationship. In this regard Mr Shilubane relied on the judgment in
Khoza v Sedibe 1963-1969 SLR 413 and submitted that that case
decided, on similar facts, that ex turpi causa non oritur actio.
to me to be a simple answer to this submission. In Khoza's case the
Plaintiff's cause of action that the alleged partnership arose
because of a putative marriage (see p. 416) and that the parties knew
their union was a bigamous one, the Plaintiff could not rely on it to
give rise to the cause of action, namely the alleged partnership.
the High Court Elyon J in dismissing the appeal said that since the
alleged partnership was founded on an immoral agreement (namely the
illicit union) no redress could be granted (pp. 421-422).
immediately points to the essential difference between the two cases.
In the instant case the partnership is alleged to have come about as
a result of an agreement dehors the allegedly bigamous union - it was
an agreement between two people (who happened to be living together)
to buy the farm in partnership. The Respondent paid the deposit (for
which she received a receipt made out to her) and thereafter the
deceased and the Respondent shared the outlay involved in improving
Respondent said in evidence that she paid "a higher percent"
than the deceased. No reliance was placed on their so called union,
only a tacit agreement to share the farm in partnership. In view of
this I do not believe it is necessary to decide whether or not the
"marriage" between the
and the Respondent was a putative marriage or a bigamous one. It just
plays no part in the issues as I see them.
next point raised by Mr Shilubane was that absolution from the
instance should have been ordered by Hull CJ since the Respondent did
not prove the value of the property. He relied on a footnote at page
103 of Bamford' s work on The Law of Partnership and Voluntary
Association in South Africa (3rd Ed.) . Apart from the fact that this
appears to be contrary to the judgment in Fink v Fink & Another
1945 WLD 226. I see no relevance in this submission to the facts of
this case. The Respondent's evidence was to the general effect that
the shares in the farm, (that is the portions to which each of the
partners would be entitled) was decided between them and that the
deceased' s share consisted of the four portions for his sons and the
Respondent's the remaining one portion on which she lived with the
deceased during the latter's lifetime. That this was the arrangement
appears to have been acknowledged by the Appellant who collaborated
with the Respondent in the appeal to the Natural Resources Board. In
the circumstances, I am of the opinion that the value of the farm or
for that matter that of the portion claimed by the Respondent is not
relevant to the issues between the parties.
Shilubane also submitted that because the deceased was married to her
in community of property she was entitled to half of the farm
irrespective of whether or not there was a partnership between the
Respondent and the deceased. I believe this submission to be
fallacious. All that the Appellant is entitled to is half of the
deceased's share in the farm. If the deceased agreed to take as his
share the four portions intended for his sons then those are the
portions in which the Appellant may be entitled to share. There was
nothing in my view in the circumstances of this case which in law
would have prevented the deceased as the administrator of the joint
estate between him and the Appellant from agreeing to the division of
the farm in the manner deposed to by the Respondent.
remains only the question of whether the tacit agreement contended
for by the Respondent was proved. There is no doubt substance in Mr
Shilubane's submission that the evidence tendered was not in all
respects consistent with the claims made by the Respondent.
Approaching the matter, however, in accordance with the enquiry
referred to in Muhlmann' s case it seems to me that the following can
be fairly said and was submitted by Mr Flynn who appeared for the
is clear evidence establishing a pattern of contribution and
involvement by the Respondent right from the outset in the
the proposal by the Respondent and the deceased to purchase the
Respondent was involved in the negotiations in the selection of the
property. She was also closely involved in the financial arrangements
for the payment for and development of the property - that she raised
loans for the project could not be and was not denied; also that
rentals she received from what was referred to as her Golf Course
property were employed in developing the farm.
my judgment Hull CJ was fully justified in arriving at the conclusion
he did on the evidence namely that on a balance of probabilities the
agreement of partnership - the tacit agreement contended for by the
Respondent - was proved by the Respondent.
the circumstances I do not think it is necessary to deal with exactly
what happened at the family meeting - suffice it to say that it seems
to me that the probable intention of the
was to divide up the farm so as to avoid a family dispute by taking
as his share the four portions designated in the plan for his sons
and by agreeing that the remaining portion would represent the
Respondent's share arising from the partnership.
the result I am of the view that the appeal should be dismissed with
Entrenamientos para correr