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