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Plessis v Milton and Others (269/84) [1986] ZASCA 37 (26 March 1986)

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269/84

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

RENè DU PLESSIS N.O. Appellant

and

LEWIS ERIC MILTON 1st Respondent
RODNEY GORDON MILTON 2nd Respondent
YVONNE MARY MILTON 3rd Respondent

CORAM: RABIE, CJ, JANSEN, JOUBERT, SMALBERGER, JJA,
NESTADT, AJA

HEARD: 6 March 1986 DELIVERED: 26 March 1986

JUDGMENT

NESTADT, AJA

The litigation which has led to this appeal has

its

2

its origin in a dispute concerning the conduct, in Swazi-

land , on a farm called Mliba Ranch, of certain cattle breed-

ing operations and, in particular, the right to ownership

of the herd involved. Sad to say, it is set against an

undercurrent of financial greed, mistrust and animosity

between members of a large but not happy family. It is to

be regretted that its ventilation in court could not be

avoided.

The factual background to the matter is, in brief,

the following. The land in question, some 13 000 acres in

extent, was, since before 1950, owned by Norman Fairbanks

Johnston. The herd of cattle comprised about 1 700 head.

It was the property of his wife, Ethel Amy Johnston (though

how.....

3

how she acquired ownership is not clear). She also owned

the farming implements including certain tractors and

trailers as well as the other animals on the ranch. They

consisted of horses, sheep, goats and pigs. Mr. Johnston

died in 1952. In his will the land was bequeathed in

trust, in equal shares, to the two children of the mar-

riage, Yvonne and Andrew, subject to a life usufruct in

favour of Mrs. Johnston. Andrew is a teacher. In

about 1950 he emigrated to the United Kingdom where he

has since lived as a bachelor. Yvonne married a Mr.

Gordon Milton. They had five children, namely, Margaret,

Eric, Rodney, Denis and Peter. After her husband's

death, Mrs. Johnston, though living in the Republic of

South....

4

South Africa, continued the farming operations on Mliba

Ranch. Over the years she was assisted in doing this by

various persons. They included Yvonne's husband (whom

she divorced in about 1965) and later, Yvonne herself.

In about 1971 Eric, who had trained as a fitter and turner,

assisted by Rodney, an electrician, took over the manage-

ment of the farm. The primary activity conducted on it

was the breeding and ranching of the cattle referred to

and the sale of their progeny in excess of those retained

to keep the numbers of the herd constant. From about mid-

1979 (or possibly earlier), however, Eric, being in con-

trol of the business, commenced to dispose of the herd it-

self. Indeed, by about 1981 (or 1982) it had, in this

way........

5

way, been sold in its entirety for not less than

R494 355.93. The proceeds received by Eric were, in the

main, or at least in part, whether directly or indirectly,

used to finance the establishment and operation of an agri-

cultural farm in the Groblersdal area of the Transvaal.

It had, in about 1976, been purchased (in Peter's name) by

the five grandchildren. Later, on 16 January 1978, a com-

pany called Beefline Brahman Stud (Pty) Ltd was incorpo-

rated and it took transfer of the farm. They became and

remained its shareholders and directors. What gave im-

petus to what may loosely be termed the transfer of far-

ming operations from Mliba Ranch to Groblersdal, was the

fact that the former had, in June 1979, been sold by the

administrators.....

6

administrators in Mr. Johnston's estate to the Swaziland

government for R235 000,00. In terms of the deed of

sale, occupation had to be and was given to the purchaser

on 30 September 1979. In the meantime, in about March

1979, Yvonne, who was at this stage resident in Benoni,

learned or became suspicious of the fact that Eric was

disposing of the herd. This marked the genesis of the

present controversy. She regarded this as irregular.

Her attitude was that the cattle (still) belonged to her

mother, that Eric, neither having his grandmother's per-

mission to do this nor having accounted to her for the

proceeds, was, in effect, committing theft of the cattle

or embezzlement of the moneys received from the sale there-

of

7

of. She determined to take action. Purporting to act

on behalf of her mother, who was living with her, she re-

ported the matter to a Mr. Renè Du Plessis, an attorney

practising in Pretoria,and instructed him to investigate

it. He had been a friend of the family for many years.

In addition, he had,in 1977,become an administrator of

Mr. Johnston's estate when the then incumbent died. Pur-

suant to his mandate, which had been confirmed in writing

by Mrs. Johnston herself in November 1979, Du Plessis, on

7 January 1980, wrote to Eric requesting certain informa-

tion concerning the farming operations on Mliba Ranch and

the cattle in particular. This led, during the course of

the following few months, to two meetings between them,as

also......

8

also a number of further letters being written by him to Eric.

Their contents are of importance and wil1 be reverted

to in due course. By September 1980, the matter had

not been resolved, at least to the satisfaction of

Yvonne. The result was that Du Plessis, having in

October 1980 obtained a power of attorney from Mrs.

Johnston to issue summons against Eric for the recovery

of all amounts received by him from the sale of the cattle,

prepared to do so. Shortly thereafter, however, it was

brought to his attention that Mrs. Johnston's mental con-

dition had deteriorated to an extent that the appointment

of a curator bonis was required. She was suffering from

senility. On 3 November 1981 an application for this

relief.....

9

relief, brought by Yvonne, was granted by the Transvaal

Provincial Division. Du Plessis was appointed to the

office. At the same time Mrs. Johnston, who by now was

7 years of age and living in a nursing home, was declared

incapable of managing her affairs.

It was in these circumstances that Du Plessis,

the present appellant, in his capacity as curator of Mrs.

Johnston, in January 1982 caused summons to be issued in

the Transvaal Provincial Division against Eric, Rodney

and Yvonne as first, second and third defendants (now the

respondents) respectively. In summary, his cause of ac-

tion was the following. In about 1971 the defendants

concluded an oral agreement with Mrs. Johnston in terms

whereof......

10

whereof the farming operations on Mliba Ranch were to be

conducted in co-partnership (on the basis of profits and

losses being equally shared); pursuant thereto, she made

available to the partnership, for its use, inter alia the

herd of cattle, dominium whereof, however, was to be re-

tained by her; despite being in charge of the business,

first defendant, notwithstanding demand, had from 1976

onwards, and in breach of his obiigations, failed to ren-

der an account of his activities; he had also misused

partnership assets. Whilst it is not alleged that the

actual sale of the cattle was wrongful, his failure to

pay over the proceeds of the sale or to render an account

in regard thereto to Mrs. Johnston or Du Plessis, as plaintiff,

is........

11

is complained of. In respect of the partnership, the

claim was, in essence, for an order dissolving it and

delivery of a statement of account and debatement there-

of (though surprisingly, not for payment of whatever may

be due). As regards the cattle, payment of R494 355,93

(being the minimum amount received by first defendant

from their sale),the rendering of an account of his deal-

ings with the cattle and payment of whatever other sums were found to

be owing as a result of further sales thereof, were sought

(against first defendant).

The third defendant did not defend the action.

First and second defendants, however, did. Their plea,

whilst admitting that in 1971 a certain transaction was

concluded......

12

concluded with Mrs. Johnston involving cattle farming

on Mliba Ranch and that pursuant thereto her herd of

cattle was utilised there, denied the alleged partnership

The true agreement , so it was alleged, was a farming con-

tract in terms whereof first defendant was employed by

Mrs. Johnston to manage the venture at an undetermined

salary. This was done until about 1975 when, consequent

upon Mrs. Johnston orally donating and delivering the cat-

tle (and the other movable assets used on the farm) to

him in trust on behalf of all her grandchildren, alter-

natively directly to the grandchildren, the contract ter-

minated. The first defendant was accordingly entitled,

as he admittedly had done, to subsequently sel1 the cattle

The.......

13

The proceeds had been used for his and his brothers and

sister's benefit. In the premises, there was no obliga-

tion to render an account to Mrs. Johnston or the plain-

tiff, neither in respect of any partnership activities

or arising from the sale of the cattle; nor was any amount

owed to her.

The trial was heard by SPOELSTRA J. In the

light of the pleadings to which I have referred, the main

issues which arose for determination were two-fold, name-

ly, (i) whether, as plaintiff alleged, a partnership had

been entered into between Mrs. Johnston and defendants, and,

(ii) whether the herd of cattle, which was admittedly Mrs.

Johnston's property, had been donated as alleged, which

was......
14

was first and second defendants case. It would appear

to have been common cause that Mrs. Johnston's condition

was such that she could not testify. Plaintiff's case

therefore rested on the evidence of Du Plessis himself

and in particular on certain oral admissions which he de-

posed to had been made to him by first defendant on 1

February 1980. Consequent on having received instructions

to protect Mrs. Johnston's farming interests and in par-

ticular her cattle (as mentioned earlier), he interviewed

him in his offices on this date. Also present was Peter

The substance of what first defendant stated was the fol-

lowing. Since about 1971 a partnership in respect of

the ranching operations had existed between Mrs. Johnston

and......
15

and the three defendants. The profits made from the sale,

from time to time, of excess cattle had over the years

been shared between them, though not on any formal basis

or with any regularity. Not all the profits had, how-

ever, been paid out. Each partner was entitled to sub-

stantial amounts of undrawn profits. The partnership

was still in existence. He undertook to furnish plain-

tiff with all balance sheets relating to it. The cattle

were the property of Mrs. Johnston. He had recently sold

470 head for R70 000,00. There remained about 1 265.

After initially expressing the view that this money had

to be "divided four ways in terms of the partnership agree-

ment", he conceded, or at least the plaintiff received the

impression......

16

impression that he conceded, that Mrs. Johnston would be

entitled to it. He undertook to keep the plaintiff "ful-

ly informed of any financial matters of importance relating

to the cattle". He intended to continue to "farm" with them;

if he was able to, he would sell cattle at about R260,00

per head. It was this conversation, considered in the

light of certain further conduct on the part of first de-

fendant (to which reference will be made), that formed the

foundation of the plaintiff's case.

First defendant, in his evidence, did not deny

that this was what he told plaintiff. He maintained, how-

ever , that neither his statement that there was a part-

nership between Mrs. Johnston and second and third defen-

dants......

17

dants and himself, nor that the cattle belonged to her,

was correct. The true position was that no such part-

nership had ever been formed and that the cattle had been

donated by Mrs. Johnston. As to the former, the pith of

his testimony was that, at his grandmother's instance, he

took over the running of the farm on her behalf; he became

her manager. He was not in receipt of a fixed salary.

He simply drew moneys by way of remuneration from the farm

banking account (on which he had signing powers) as he

needed them. However, the money made from the farm be-

longed to her. As regards the cattle, his grandmother,

being financially secure, realising that she was getting

on in age and wishing to avoid death duties, had in 1975

or.......

18

or 1976 said to him, "Eric, the cattle are yours now".

She added the rider, however, that, seeing that she had

nothing left to give her other grandchildren, he, first

defendant, had to "look after them" or "see them right"

(iie. financially). He had misinformed the plaintiff

because he believed that he was really acting, not on

behalf of his grandmother, but for third defendant (his

mother) who, had the truth been told by him, namely, that

there was no partnership and that the cattle had been do-

nated, would have learned of it and, so he feared, have

vented her wrath on Mrs. Johnston. This he wished to

avoid.

Second defendant did not testify. Nor did

third.......

19

third defendant. However, Peter, Denis and Margaret gave

evidence mainly and broadly in corroboration of the alleged

donation and first defendant's denial of a partnership

So too did a Mrs. Wise and a Mrs. Coull. They were

friends of Margaret who, in "about the middle 1970's",

had become acquainted with and spoken to Mrs. Johnston

whilst she stayed with her.

The trial court, after a hearing lasting several

days, did not arrive at any conclusion concerning the do-

nation issue. This was held to be unnecessary in the

light of the finding that plaintiff had failed to establish

that a partnership had been entered into. Having also

rejected an alternative basis argued for the furnishing

of.......

20

of an account, namely, an obligation so to do arising

from the farming contract pleaded by the first defendant.

SPOELSTRA J dismissed the claim with costs. Hence

this appeal. It was brought after the necessary leave

was granted by this Court.

It is, I think, plain that on plaintiff's evi-

dence, he was entitled to succeed in his claims. This is

certainly so if a partnership as alleged was proved and

ownership of the cattle remained with Mrs. Johnston. Less

clear, however, is whether, in the absence of a relation-

ship of partnership, the claim to the cattle (to use a com-

posite term for what was sued for in this regard) was

bound to fail. This, as I have indicated, is the view

that.......

21

that the trial court took. It was, in my opinion, er-

roneous . Admittedly, plaintiff's summons is capable

of being construed as linking the claim to the cattle to

the alleged partnership, thus making the former dependent

on the latter. This, however, so it seems to me, adopts

too narrow a view of the pleadings. In any event, on

the evidence as presented and canvassed, they were (or

became) two independent issues. In other words, even if,

as alleged by first defendant, the relationship between himself

and Mrs. Johnston was merely that of employer and employee,

his dealing with the cattle would have been wrongful and

accountable unless they had been donated as alleged (or,

I must add, for reasons which wil1 appear, he was other-

wise.......

22

wise authorised to dispose of them). It was therefore

necessary that this latter issue be decided irrespective

of the outcome of the partnership dispute. Whether the

converse situation applied, namely, that a finding that

first defendant was entitled to dispose of the cattle

would dispense with deciding the partnership issue, was

raised with counsel before us. On behalf of the plain-

tiff, Mr. Southwood, adopting a wise and pragmatic course.

was prepared to answer this in the affirmative; there

would be no or little advantage to Mrs. Johnston if she were

found to be a partner in the farm venture in circumstances

where it or she had, so to speak, lost the benefit of the

cattle. The result thus is that, contrary to the trial

court......

23

court, we consider it necessary, at least in the first

instance, to focus attention on first defendant's right

to deal with the cattle and in particular the alleged

donation. It is, of course, difficult to separate the

two issues. One is, perforce, dealing with a single

series of events. It must be borne in mind that evidence

on one necessarily obtrudes on and affects the other.

especially in relation to the credibility of the wit-

nesses .

With this in mind, I commence with certain ob-

servations of a general nature. Firstly, there are some

preliminary procedural matters that require mention. Mrs.

Johnston died on 13 January 1986, shortly before the hearing

of......
24

of this appeal. In terms of Rule 15 (3) of the Uniform

Rules of Court, Du Plessis, in his capacity as her duly

appointed executor, was substituted as plaintiff. Under

her last will (to which I refer again shortly) third

defendant and Andrew are Mrs. Johnston's heirs. If then,

what may be termed her quasi-vindictory claim to the cat-

tle should have succeeded, the benefit thereof would ac-

crue to them. It may, therefore, be said that they had

an interest in the outcome of the action sufficient to

require their joinder. The same may be suggested of the

other grandchildren who are not defendants, namely, Peter,

Denis and Margaret; they would stand to lose if plaintiff's

action succeeded. This does not, however, give rise to

difficulty.......

25

difficulty. The latter three persons testified. Yvonne

is the third defendant. It is clear on the evidence that

Andrew was fully aware of the proceedings; indeed plain-

tiff had his general power of attorney. Secondly, there

are the following evidential points. The inadmissibility,

as against first and second defendants, of the numerous

extra-curial assertions made by third defendant to plain-

tiff and testified to by him, must not be lost sight of.

The failure by both parties to call certain witnesses was

alluded to. I agree with the learned trial judge that

no adverse inference was to be drawn from the failure of

second defendant to give evidence. Nor could it have

been expected, in view of the ill-feeling between mother

and........

26

and children as also that, as will be seen, she stood to

lose in the event of the action failing, that third de-

fendant should have been called by first and second defen-

dants. On the contrary, I would have expected her to tes-

tify for the plaintiff. Finally it is, I think, worth

emphasising that what has to be resolved is not so much

a conflict of evidence between plaintiff and first defen-

dant (and his witnesses) but rather whether, accepting the

former's credibility (which was not, save in certain re-

latively minor respects ,impugned) and accordingly, notwith-

standing and indeed contrary to the latters' admissions,

the true state of affairs was as testified to by him, namely.

that no partnership existed and that the cattle had been

donated.......

27

donated (or, at least, that Mrs. Johnston permitted him

to deal with them as he did). This requires a detailed

analysis of the relevant evidence. I turn to the task

in hand, dealing firstly with the donation issue.

The meeting of 1 February 1980 was to discuss

an accusation that first defendant was wrongfully dispos-

ing of the herd or, as it was put, that he was guilty of

embezzlement. It was a serious one, made more so seeing

that it was advanced by an attorney. It is difficult to ac-

cept first defendant's description of his interview as

"social". That he was entitled to sell the cattle would

have been a complete answer. Peter testified that first

defendant wished at the meeting "to clear the air" (by

telling.......

28

telling plaintiff that the cattle had been donated). Yet instead, as one would have expected, of disclosing this, it is stated that they were Mrs. Johnston's property. In the circumstances, the improbability of this being untrue, is, prima facie, a strong one. The admission is in the clearest terms. It was ostensibly solemnly made. It is quite unequivocally inconsistent, with the cattle having been donated (of which there was, of course, no mention). In these circumstances, its weight cannot be underestimated. As Phipson on Evidence, 13th ed., quoting old English authority, points out (in para 1904):

"Whatever a party says is evidence against himself ... what a party himself admits to be true may be presumed to be so".

Moreover

29

Moreover its cogency is enhanced by what succeeded its

making. By letter dated 5 February 1980, written by

plaintiff, first defendant is asked to advise of any in-

accuracies in the memorandum which was enclosed and which

sets out in great detail what was said at the meeting on

1 February. At the same time, certain information is

requested from him concerning the cattle. A letter

dated 23 June 1980 is to similar effect. On 27 Sep-

tember 1980 plaintiff again wrote to first defendant ac-

cusing him, in effect, of wrongfully disposing of Mrs.

Johnston's cattle. All these letters were received;

none were replied to and this despite first defendant

having been warned that his failure to reply to previous

letters.......

30

letters "will be used against you adversely". On the

basis that, according to ordinary human expectation, firm

repudiation of the allegations therein contained would

be the norm if it was not accepted as correct, first de-

fendant's silence and inaction must prima facie count a-

gainst him as a (further) admission (McWilliams v First

Consolidated Holdings (Pty) Ltd 1982(2) SA 1 (A) at 10 E-F).

Other evidence to the same effect is the following. On 25

February 1980 first defendant again consulted with plain-

tiff. This time it concerned the sale by him of certain

of the cattle to a Mr. De Bruyn. Difficulty had arisen

over payment by the purchaser. It is unnecessary to can

vass the details thereof. What is significant is that,

according.......

31

according to plaintiff, first defendant wished steps to be

taken to collect the money on Mrs. Johnston's behalf. On

2 April 1980 plaintiff sent first defendant a copy of a

letter he had written to the purchaser's attorneys. In

it is the allegation that the cattle in question "belong

to Mrs. Johnston". Again, despite receipt, there was no

reply and accordingly no refutation. On 2 December 1980

plaintiff received on behalf of the purchaser an amount of

R7 252,50, representing interest on the price. First de-

fendant never claimed it. His explanation was not that

he did not know about it but that "it( the money) was

going to my gran so it did not really make any difference

to me".

It.......
32

It is against this background that one has to consider whether the admission has been shown to be untrue. It is of course not conclusive. It can be explained. As Wigmore on Evidence, Vol IV, para 1059 says:

"(I)t is merely an inconsistency which discredits, in a greater or lesser degree, his present claim and his other evidence".

The onus of establishing this is on first ( and second) defendants. This is so, not only because of the admission itself,but also by reason of the presumption or inference against liberality (Joubert: LAWSA, Vol 8 para 130) though where, as here, the parties involved are closely related (by blood) to each other, it would be less strong (Smith's Trustee v Smith 1927 AD 482 at 486).

A
33

A logical point of departure is a consideration

of the reasons, as proffered by first defendant in his evi

dence, for having lied to plaintiff. Now it may be said,

with some force, not only that it is improbable that plain-

tiff was not duly instructed by Mrs. Johnston, but that,if

this was first defendant's impression, he would simply have

refused to speak to plaintiff or, being prepared to do so,

have put it to him that it was his mother who was behind

things, or, tell him the truth but ask him not to divulge

it to third defendant. One would have expected him to

have discussed the letters he had received from plaintiff

(which, incidently, specifically allege that he is acting

for Mrs. Johnston) with her. He did not , though he does

say ......

34

say that he mentioned receipt of them to her. He just,

so he added, ignored them. Later in his evidence, first

defendant gives a different reason for not telling the

truth about the herd, namely, "because I had no legal do-

cuments to say they were mine". As to his apprehension

that third defendant would maltreat Mrs. Johnston if, as

he feared, she learned about the donation (a specious

reason in itself), Mr. Southwood pointed to various pas-

sages in the evidence indicative of third defendant al-

ready knowing the true state of affairs. On this basis

the whole reason for misrepresenting the position would

fall away.

On the other hand, however, in evaluating these

criticisms......
35

criticisms of first defendant's version it is important,

in the first instance, to bear in mind that he is a rela-

tively uneducated person. One has to guard against ex-

pecting from him the sort of reaction that normally would

be forthcoming. Secondly, the identity of the complainant

is relavant in determining with what degree of anxiety

first defendant would treat the accusations made against

him. His evidence in this regard was: "But when your

own mother says you are embezzling money no that is not that

serious whatsoever". Furthermore, as he put it: "I just

know my grandmother would never do it". He was referring

to the allegation of embezzlement that was being made against

him. Thirdly,

there.......

36

there is good reason for finding that,though plaintiff un-

doubtedly believed that he was duly instructed, by Mrs.

Johnston, this was not the case; that it was third de-

fendant who was calling the tune {or at least that this

was what first defendant believed). I have already, at

the beginning of this judgment, indicated that it was she

who initiated an investigation of first defendant's ac-

tivities by plaintiff. The evidence shows that on numer-

ous occasions between 20 March 1979 and 1 February 1980 and

even thereafter she pressed, or to use plaintiff's own

words, "pressurised", him to proceed against first defendant.

The instructions to sue, given in September 1980, came from

third defendant. There is no information of the cir-

cumstances.......

37

cumstances in which Mrs. Johnston signed the power of

attorney in October 1980 (which it is to be noted in pas-

sing , was just two months before it was decided to appoint

a curator) . It was sent to her by post and received back

through the same medium. Unfortunately, the only occasion

on which plaintiff consulted with Mrs . Johnston herself

was on 19 February 1980. Even then it was in the presence

of third defendant. It does not seem as if the owner-

ship of the cattle was discussed.. Moreover, so plaintiff

stated, because of her deafness, she took only a minor part

in what was being discussed; nor did she follow a great

deal. He also conceded that, on her own admission, third

defendant was keeping information from her. In a letter

dated.......

38

dated 29 January 1980 to third defendant he recorded:

"I confirm that you indicated that it would not be in your mother's interests to advise her immediately of Eric's admissions to you although of course at some stage she will have to be put fully into the picture. You considered that in view of your mother's age care should be taken in preventing unnecessary shocks. Obviously I will bear this in mind".

The relevance of these considerations is heightened, not only by the clash of financial interests that existed between them, but also by the fact that the relationship between third defendant and her children was a bad one. There is reference,in the evidence,to litigation between them, ,to her having been assaulted by one of them and, generally, to an atmosphere of antagonism. Of particular moment is plaintiff's own assesment of third defendant as

being

39

being unstable, untrustworthy and even unbalanced. He

conceded - that he "would not put it past Yvonne to try and

manipulate Mrs. Johnston or to influence her" (though he

did not believe that Mrs. Johnston would allow this

However, she was an old lady by this time and was living

with third defendant and was apparently physically de-

pendent on her. I find it strange that third defendant,

who was in a good position to judge Mrs. Johnston's con-

dition, never suggested a curator bonis. There is, furthermore,

the probability that had Mrs. Johnston really been a-

ware of what was transpiring, she, particularly having

regard to her strong personality, would either have taken

a much more active part in instructing plaintiff or she

would.......
40

would have confronted first defendant herself, or both.

Of course, much of what has been stated would not have

been present to the mind of first defendant. Never-

theless, it provides reinforcement for his belief that

he was not dealing with his grandmother's attorney-

Indeed, his evidence was that plaintiff himself told him

that "your mother is telling me stories". Finally,

first defendant's version for misinforming plaintiff,

viz., his apprehension for Mrs. Johnston's wel1-being in

the event of third defendant finding out or receiving con-

firmation that the cattle had been donated, though perhaps

exaggerated, is, at least subjectively regarded, not with-

out substance. Viewed in the light of the cumulative

effect of these considerations, first de-

fendant's ..... .

41

fendant's explanation for having, on 1 February 1980 ad-

mitted that the cattle were the property of Mrs. Johnston,

if not convincing,and whilst, in no way to be condoned,

must be regarded as plausible.

Its probity must, naturally, in addition, be

examined in the light of the evidence as to the donation

itself. In this regard, first defendant,to begin with,

labours under the handicap of, ex hypothesi, being an un-

truthful person, the question being: was he lying to

plaintiff or the court? He was categorised by the trial

court as a poor witness (a conclusion for which there is

ample support in the record). Margaret and Peter were

similarly branded. Due weight must be given to these

findings......

42

findings. That they are not impartial witnesses is

manifest. A particular criticism of first defendant is

his statement that on one occasion on the farm, long prior

to February 1980, Mrs. Johnston had, in plaintiff's presence,

told Andrew of the donation of the cattle. Plaintiff's

denial of this was never challenged in cross-examination

of him. The difficulty that one experiences with the de-

fence version arising from these general credibility de-

ficiencies is multiplied when its content is looked at.

It is virtually impossible to make a finding as to when

the donation took place or exactly who the donees were.

On the last point, the witnesses contradict each other and,

in addition, their evidence is at variance with the plea.

Without......

43

Without going into detail, the position may be summarised

by saying that it is uncertain whether the cattle were

given to first defendant (as he, though not consistently,

alleges) or to him in trust (and, if so, who exactly the

beneficiaries were) or to the grandchildren or to the

grandsons or to the grandchildren and the third defendant.

Margaret's version that it was on the advice of an attorney

that the donation was to first defendant, coupled with a

moral obligation to share it with the others, is question-

able. It means that first defendant was to be trusted with.

not only deciding who was to benefit and the extent there-

of, but whether they would benefit at all. There was

no suggestion that he, as eldest, or on any other basis,

was......

44

was especially favoured by his grandmother. There is an even more basic confusion in the defence evidence, i.e., whether a donation took place at all. For example, Peter testified that it was merely his understanding that there had been a donation; later that Mrs. Johnston "regarded it (. the herd) as her property at all times"; that he believed that they would one day inherit the cattle. His evidence in this latter regard reads:

"Now during the same time that your grandmother discussed these things with you, what
was said by her about the cattle? Well, the
cattle on her death would be left to Eric because Mr Versfeld says that you would not be able to sort out a bull and a cow and this and this to the grandchildren, it would be much better to leave them to the oldest and he would be able to deal them out between the four of us,
the......
45

the five of us, sorry. Between all the grandchildren .

Did she convey to you that you were going to

inherit the cattle, you the grandsons? - For

sure.

And was that always the position? - That is

right."
Margaret conceded that when she spoke to plaintiff shortly after action had been instituted and after initially alleging a donation of the cattle, she altered her stance and relied on a contemplated inheritance. Her explanation that "I did slip up" and that "I can also get muddled up" is hardly convincing. Also inconsistent with her earlier evidence of a donation (to first defendant, later changed to "us")/ is her description of what happened when the Gro-blersdal farm was bought. She said, in answer to a question as to what Mrs. Johnston said to first defendant:

"Oh.......
46

"Oh she said 'Eric I am giving you the authority to sell the cattle and bring up the implements and the sheds and everthing movable from ... Mliba'". It may be said that this is contra-indicative of a donation. Mrs. Wise, in her evidence, stated inter alia:

"Now who did the cattle then belong to? -

To gran.
Yes. Was that at all times the situation? -
That is right.
Did that ever change? - Not that I know of "

(though,almost immediately thereafter,she contradicts herself and says: "It ( the cattle) belonged to the grandchildren"). Initially, Mrs. Coull said that Mrs. Johnston had told her that "she wanted to give the cattle to the boys". This was then changed to an allegation that

"she

47

"she had given" the cattle. She conceded she knew the

difference between "wanting to give" and "actually giving".

I turn to look at the other side of the coin,

namely, those factors favouring defendants' version. Mak-

ing due allowance for the defects, i.e., the improbabili-

ties and contradictions in their evidence, the fact re-

mains that all six defence witnesses depose in their dif-

ferent ways) to the cattle having been donated by Mrs. John-

ston. I have already referred to the trial court's poor

impression of first defendant, Peter and Margaret. At

the same time it is relevant to note that the learned judge

was not unfavourably impressed by them "as persons"; he

did not regard them as inherently dishonest or unreliable

Denis........

48

Denis was found to be a good witness. So too were Mrs.

Wise and Mrs. Coull who, as is pointed out in the judgment,

are disinterested persons. I think this comment is cor-

rect, despite their friendship with Margaret. The point

was well made by Mr. Maritz, for the first and second de-

fendants, that,had these witnesses dishonestly conspired

to fabricate their version of a donation, one would have

expected their evidence to coincide to a much greater ex-

tent than it did. They were testifying to what had

occurred some years before, not on a particular occasion

when all were present, but to what was no more than chance,

almost casual, remarks made by Mrs. Johnston. There was

no formal announcement by her of the donation. The cri-

ticism........

49

ticism, arising from the uncertainty as to the identity of the donees, must not be taken too far. It is, of course, an important consideration in testing whether a donation took place. At the same time, it is not essentia1 that there be a finding in this regard. It could still be concluded that Mrs. Johnston had lost her ownership in the herd (which, after all, is the real issue).

Of more fundamental importance are the following factors. On plaintiff's case, first defendant was openly and brazenly disposing of the cattle when he had no right to do so. It seems to me to be unlikely that he would act in this way. A donation of the cattle would not have prejudicially denuded Mrs. Johnston. Her needs were few;

she
50

she had adequate means from other sources. Realising

her advanced age, she, so it appears, wished to avoid

death duties. It is probable that she thought this could

be done by divesting herself of the cattle (which could explain

why no formal deed of donation was executed). The evi-

dence establishes, quite clearly, that the relationship

between Mrs. Johnston and her grandchildren was an ex-

tremely close and affectionate one. She regarded them

as her children. Second defendant, Denis, Peter and

Margaret had lived with her for extended periods of time

when they were young. She was and continued to be like

a mother to them. In latter years they reciprocated.

She often stayed with and was cared for by Margaret, Denis

and......
51

and Peter. As will be seen, she often visited them at the Groblersdal farm. Whilst the donation is in dispute, what is not is her oft-expressed desire that "the cattle be theirs". Plaintiff conceded this. What he said was:

"I have no doubt it ' (. the herd) was promised and I have no doubt that Mrs. Johnston always had the intention that the children would benefit from the cattle."

Denis evidence that she said that she "would never forget us" has the ring of truth. This is illustrated by the terms of a will she made on 4 November 1975. Under" it" the cattle are bequeathed to her grandsons. They (and Margaret) were, if not completely, then substantially, dependent on her; and she knew this. They had no assets of their own.

First

52

First and second defendants were, at her instance, and

over a number of years, actually utilising the cattle

for their benefit. This is to be contrasted with the re-

lationship between her and her two children, viz , third de-

fendant and Andrew. She had very little to do with him.

True, she lived with third defendant, but I do not have

the impression that they were close. She seems to have

had no option. Plaintiff said that it was an "up and

down" relationship with "serious lows". There was no

question of third defendant and Andrew being able to farm

with the cattle. In any event, both of them, as heirs

to Mr. Johnston's estate, would, to Mrs. Johnston's know-

legde, be financially provided for.

It......

53

It may be said, however, that much of the afore-

going shows merely that her intention was no more than

that her grandchildren would inherit the cattle. There

are two circumstances which, in my view, strongly indicate

that this is not so; that her desire that the cattle

should be theirs was translated into reality. The one is

Mrs. Johnston's second will. It was executed on 21 March

1979. Its effect is to constitute third defendant and

Andrew as her heirs. There is simply no mention of the

grandchildren in it. If the cattle were then part of her

estate, the result can only be described as startling.

It would mean that they had been disinherited. This is

inconceivable. There was no evidence of any deterioration

in......

54

in their relationship. I refer to what I said earlier

regarding the improbability of Mrs. Johnston fully under-

standing that first defendant was being sued for the cat-

tle. Even if it be assumed that he had blotted his copy

book, it does not explain why the other grandchildren should

have been excluded. There could be no question of Mrs.

Johnston thinking that a bequest of the cattle to third

defendant and Andrew would ever benefit her grandchildren

I accordingly agree with the submission that it is to be

inferred that she had already donated the cattle, thus

making it unnecessary to bequeath them; her grandchildren

had, so to speak, received their inheritance.

The other circumstance which, not surprisingly, was in the

forefront.....

55

forefront of defendants argument, is, I think, illustra-

tive of actions speaking louder than words; of conduct

being more probative than oral pretences. As a fact,

first defendant was never asked by Mrs. Johnston to ac-

count for his dealing with the cattle. Moreover, it

clearly emerges that the sale of the cattle by first de-

fendant and the utilisation of the proceeds to finance

the Groblersdal venture and the fact that the shareholders of the com-

pany which owned it were the grandchildren, were all facts

which were known and appreciated by her (at a time when

her mental faculties were intact). There is a good deal of

evidence that it was, in truth, her idea and that she was

active in pursuing it. I quote only what plaintiff said

in.......

56

in this regard, namely:

"That would seem to indicate that she wanted

to establish them in Groblersdal in a financially

lucrative undertaking? - I have no doubt that

that was her intention, that she was really hap-, py to see the Groblersdal operation established on a proper basis... We have established that she was aware ... that certainly the operations would be transferred from Mliba to Groblersdal.

That was her basic plan, you know that? - Yes."

Interestingly, in plaintiff's note of his consultation with Mrs. Johnston, held on 19 February 1980, it is recorded:

"Mrs. Johnston requested Mr. Du Plessis to attend to the sale of the cattle as soon as possible as
no control was being exercised over the cattle and she was fearful that the Swazi Government would prohibit money being taken out of the country. Mrs. Milton agreed and Mr. Du Plessis undertook to attend to having the cattle sold and to, if necessary, exert pressure on Eric to assist him therewith."
At
57

At the very least, she encouraged and approved of what has

been referred to in the evidence as the transfer of farm-

ing operations to Groblersdal or the "milking" of Mliba

Ranch. It is noteworthy that the dates when sales of

cattle commenced, coincide, more or less, with the com-

mencement of the Groblersdal venture, or, perhaps, the

formation of the company. On the probabilities, this is

compatible only with a donation of the cattle by conduct

(the company being the vehicle for its implementation) or

of a right to dispose of the herd and, as such, is cor-

roborative of the defence case that there had been an

express donation.

The exercise of assessing where the probabilities

lie......

58

lie is often difficult. This is such a case. What is
involved is a comparison between the two opposing con
tentions. As Wigmore, Vol IX, para 2498,
quoting an American case,puts it:

"By a proponderance of evidence is meant, simply, evidence which is of greater weight, or more convincing, than that which is offered in opposition to it ...."

The catalogue of defects in defendants case on the merits of whether there was a donation, must seriously detract from its acceptability. One must, however, guard against magnifying them out of proportion to what is justified in the circumstances. Taking an overall view of the evidence, they are, in my judgment, sufficiently explained

and

59

and out-weighed by the considerations to which I have

referred as to warrant the conclusion, to which I accor-

dingly come, that first and second defendants succeeded in

proving that the cattle were donated by Mrs. Johnston.

It follows that she, and accordingly plaintiff, had no

right to them and that those parts of the claim relating

to the cattle were correctly dismissed.

This conclusion, in the light of the concession

referred to earlier, really makes it unnecessary to decide

the partnership issue. In order, however, to avoid any

future litigation which may arise from the matter being

left uncertain, it is desirable to deal

(albeit only briefly) with it. I must preface doing so

by returning, for a moment, to the pleadings. In an at-

tempt......
60

tempt to widen the ambit of the cause of action in this

regard, plaintiff, at the hearing before us, sought an

amendment to his particulars of claim. Its effect, if

granted, would have been to introduce an alternative

ground for the alleged obligation by first defendant to

render an account, namely, his employment by Mrs. John-

ston as her farm manager. The account sought to be claim-

ed in the amendment relates to his dealings with the cat-

tle, but the intention was, no doubt, that it be in respect

of, or include, his activities generally on the farm. A

similar argument that on his own version of the relation-

ship between them, he was obliged to account to Mrs. John-

ston, was rejected by the trial court. The only difference

was.....
61

was that apparently the umbrella of "Alternative Relief" was relied

on rather than, as now, a specific amendment to the sum-

mons . However, I think it should suffer the same fate

I agree with Mr. Maritz that plaintiff failed to prove that

the terms of the farming contract were such as to enable

it to be concluded that the contended for obligation to

account existed. Certainly, the matter was not fully

canvassed by both sides in the sense that the court was

expected to pronounce upon it as an issue. This is what

is required before an ex post facto amendment, having the

effect of retrospectively widening the issues, will be

allowed (South British Insurance Co Ltd v Unicorn Shipping

Lines (Pty) Ltd 1976 (1) SA 708 (A) at 714 G; Director of

Hospital.....

62

Hospital Services v Mistry 1979 (1) SA 626(A) at 636 C).

During his opening address at the trial, counsel for plain-

tiff disavowed reliance on the farming contract in this

connection. The amendment must be and is refused.

The onus was, of course, on plaintiff to prove

the alleged partnership. I deal, firstly, with those fac-

tors militating against its discharge. There is, to begin

with, first defendant's detailed admission on 1 February

1980 to this effect and his failure to deny the allegations,

contained in plaintiff's subsequent letters, that a part-

nership existed. It was common cause that a partnership

between Mrs. Johnston and the defendants was held out to

exist and that first and second defendants were parties

to.....
63

to this representation. Thus, in respect of the finan-

cial years 30 June 1974 to 30 June 1978, the balance

sheets submitted to the Swaziland Income Tax authorities

for Mliba Ranch,describe the persons involved as "Mrs.

E.A.Johnston, Mrs. Y.M. Milton, Mr. L.E. Milton and Mr.

R.G. Milton Farming in Partnership as Mliba Ranch".

The pre-trial conference minute contains an acknowledge-

ment that they were prepared on the instructions and with

information given to the bookkeeper, who drafted them, by

first defendant. Some of them were signed by the partners

themselves. The explanation for the alleged fiction was

that it enabled less income tax on the proceeds or the

farming operation to be paid than would otherwise have

been.......

64

been the case. It has, however, remained a mystery to

me how or why this would have been so. Third defendant

was under the impression there was a partnership. So,

too, was De Bruyn, the purchaser of cattle from first de-

fendant . He could only have been led to believe this

by first defendant who, in fact, at one stage of his evi-

dence, conceded that what he termed "the loose family ar-

rangement", appertaining to the farming operations, was

"run as a four-way partnership". Whilst Mrs. Johnston

would not appear to have received any moneys from the

farming venture, all three defendants did.

The above constitutes a formidable body of evi-

dence in favour of a finding that there was a partnership

as......
65

as alleged by plaintiff. I have, nevertheless, come to

the conclusion that the trial court's decision to the con-

trary was correct or, at least, I am not persuaded

that it is incorrect. The three essentialia of a part

nership are (i) a contribution by each of the partners to

the business; which (ii), is to be carried on for their

joint benefit, (iii) the object being to make a profit

(Bester v Van Niekerk 1960 (2) SA 779 (A)). It is un

necessary to consider to what extent, if at all, they are

satisfied in casu (save to point out, in passing, that it

is difficult to appreciate what contribution third defen-

dant is supposed to have made). In addition, however, there must

be a clear intention, by the parties involved, to create

a
66

a partnership. Whilst their statements or expressed in-

tentions are of importance in deciding this issue, a part-

nership wil1, notwithstanding the presence of the three

elements referred to, only be found to exist if it cor-

responds with their real intent. A court will not give

effect to a simulated intention (LAWSA Vol. 19 paras 372

and 373). The real nature of the agreement, rather than

what the parties choose to call it, is looked to (Blismas

v Dardagan 1951 (1) SA 140 SR at 146 H). Approaching the

matter thus, a partnership was, in my view, not establish-

ed. I refer, in this regard, to the reasons given by the

trial court. I would merely stress or add the following

Denis, in particular, corroborates first defendant, Peter

and.......

67

and Margaret's evidence that it was a sham (a version

which is actually,in some respects, against their inte-

rests). The conduct of the parties involved bears this

out. No partnership meetings were held. There was the

virtual liquidation of the Mliba Ranch venture; had a part-

nership existed, this would have been wrongful, at least

as far as third defendant was concerned. On the instruc-

tions of Mrs. Johnston, various amounts were paid out over

the years, from the Mliba Ranch account, to non-partners.

These were the university fees and other personal expenses

of Peter and Denis. The balance sheets reflect the herd

as a partnership asset. It was common cause that this was

incorrect. This must seriously detract from their proba-

tive........

68

tive value of what the relationship between the parties was

If third defendant was not a partner, the whole or main ba-

sis of plaintiff's case falls away. In my view, and de-

spite there being a written agreement dated 26 January 1965

drawn on the basis of the existence of a partnership be-

tween them, it is inherently improbable that this was so.

In 1971 the relationship between Mrs. Johnston and third de-

fendant was summarily terminated by Mrs. Johnston. There-

after third defendant had nothing to do with the conduct of the

business. What amounts she was paid would seem to have been ex gratia.

I am bound to say, in conclusion, that it does the parties

concerned no credit that they were prepared to and did mis-

represent the true relationship between them. Their con'

duct......
69

duct in having done so might well have given rise to an

estoppel,were third parties involved. That, however, is

not the position here.

Even on the basis of the appeal failing, the

trial court's ;order for costs was attacked by plaintiff

For it to be sustained, it would have to be shown that

the latter's refusal to depart from the usual rule that

costs follow the event, amounted to an improper exercise

of its judicial discretion. Only then, would an inter-

erance on appeal be justified (Rondalia Assurance Cor-

poration of SA Ltd v Page and Others 1975 (1) SA 708 (A)

at 720 C-D). What was apparently sought (obviously in

the event of plaintiff's claims failing) was that first

and......

70

and second defendants be deprived of some or all of their

costs. According to the judgment,this was based on "their

reluctance to co-operate fully" with plaintiff "in solving

the disputes". In this court, however, Mr. Southwood was

more bold. His main submission was that first defendant

be ordered to pay plaintiff's trial costs; alternatively

that he be deprived of all his costs. The factual foun-

dation of the argument was the false statements he made to

plaintiff on 1 February 1980. It was contended that it

was this (dishonest) conduct, coupled with his subsequent

failure to reply to plaintiff's letters, which was the

primary cause of the litigation which ensued. I agree

with this. Indeed, plaintiff in his evidence describes

it.......

71

it as "decisive in regard to my further actions relating

to this estate". What took place, therefore, was a posi-

tive deception by first defendant, not merely an absence

of co-operation. This is so even though, soon after sum-

mons was issued, second defendant attempted to discuss the

case with plaintiff who, however, refused to see him. Mar-

garet did instead. Plaintiff cannot be criticised for

,not accepting her initial assertion, later retracted, that

there had been a donation. The trial court, apparently not

having had full regard to first defendant's dishonesty and

its effect on plaintiff, as referred to above, we are, I con-

sider, free to decide the issue of costs afresh. This

must be done in the light of the principle that a litigant mis-

leading another into unnecessary proceedings may be deprived

of.......
72

of his costs. In unusual or extreme cases where, for

example, the deceptive conduct is intentional and is the

cause of all the costs in the proceedings, he may even,

to mark the court's disapproval of his conduct, be ordered

to pay the unsuccessful party's costs, at least where the

latter acted reasonably in instituting action or continuing

with it. In the light of what has already been stated,

plaintiff, a manifestly methodical and meticulous attor-

ney in all other respects, should, I feel, have been alert-

ed to the danger of Mrs. Johnston not fully comprehending

the situation and therefore of the need to consult with

her more closely so as to obtain better and more pertinent

instructions to sue first defendant. I accordingly do not

think.......

73

think the latter, more drastic, type of order is warrant-

ed. In all the circumstances, however, a qualified de-

privation of costs is. This can, naturally,only apply to

first defendant. Second defendant was not, on the evidence,

a party to plaintiff having been misled and must there fore

not be prejudiced by the proposed special order. The

problem is how to cater for this seeing that both were re-

presented by the same attorneys and counsel. There are

various choices. To give effect to my desire that first

defendant should forfeit only part of his costs, I have

decided on one which provides for plaintiff having to pay two

thirds of (first and second) defendants' costs, coupled with

a direction that first defendant is to pay the balance

of......

74

of second defendant's costs, provided, however, that if

they are not recoverable from him, plaintiff will be liable

therefor. It was, correctly, not suggested that this

limited success on appeal should, in any way, affect the

costs thereof.

The result is that the appeal fails and is dismissed

with costs. The order for costs made by the trial court is,

however, altered to read: Plaintiff is ordered to pay two

thirds of first and second defendants' costs; the balance of

second defendant's costs is to be paid by first defendant,

provided that in so far as it is not recoverable from him,

it is to be paid by plaintiff.

NESTADT, AJA RABIE, CJ

JANSEN, JA

JOUBERT, JA Concur SMALBERGER, JA