Answering Affidavit SCA-6682.pdf

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IN THE SUPREME COURT OF APPEAL FOR THE REPUBLIC OF SOUTH AFRICA H E L P A T -^BL O I S . M . F : O N N -

CASE NO.

CPD Case No: 639312002 In the matter between:

NAZEEMA DU TOIT Plaintiff/Appellant

and

NAZEEHMED SERIA ^DefendanVRespondent

RESPONDENT'S ANWERING AFFIDAVIT

I, the undersigned,

.

NAZEERAHMED SERA do hereby make oath and state that:

1 I am an adult male registered and practising architect, resident at 81

Taronga Road, Crawfold, Western Cape.

2 I have read the affidavit of Nazeema Du Toit filed in support of her

application for leave to appeal to the above Honourable C o u , and I shall attempt to deal with such allegations as may be relevant.

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However, my failure to deal with each and every allegation should in no way be construed as an admission thereof.

3 AD PARAGRAPH 3 THEREOF

The Appellant is highly skilled in computer ^word-processing. I deny that she is currently unemployed and I have reason to believe that she is actively involved in her (Family's hospital laundry business.

4 AD PARAGRAPH 6 THEREOf

I am respectfully unable to appreciate the supposed relevance of the

officiating Imam not being a registered marriage officer in terms of South African Law, as it has never been denied and/or disputed that the Islamic marriage that subsisted between myself and the Appellant was a marriage governed by Islamic law principles (Sharia), and I have been further advised that this above Honourable Court has on numerous occasions upheld the view that an Islamic marriage is recognised as one as being out of ^community of

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property.

The Appellant, when she abandoned the common home in/or about November / December 2001, had advised me via her then attorneys of record that she would be seeking a divorce from me. The

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Appellant has also never denied receiving an irrevocable

T a l a q

from me, with the result that our marriage was officially terminated, and recognised as such by the Cape Muslim Judicial Council in or about

December 2002.

AD PARAGRAPH 9 THEREOF

I confirm that the Appellant had claimed in her Particulars of Claim that an alleged tacit agreement of Universal Partnership was allegedly concluded on or about the date of our marriage.

Regretfully, the Appellant has not annexed her Particulars

,

of Claim to her affidavit as alleged.

6 AD

^PA

RAGRAPH

.

10 THEREOF

Insofar as the Appellant alleges that she has relied upon the advice of her legal

^r

e

^p

resentatives, I respectfully dispute same, and deny that such advice is either correct in law, or on the facts, as alleged by

Appellant.

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It is my respectful appreciation, and with reference to Rule 6 of the above Honourable Court's Rules of Practice, that the Appellant's application is defective and/or incomplee,. in that it does not include a copy of the Order of the Court ^aquo. against which she 'seeks leave to appeal, nor does it include a copy of the Order refusing Leave to Appeal by the. Court a t q u o .

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.a 8 AD P R A G R A P H 14 THEREOF''^,

Whilst I have been advised that the law does indeed allow for a

4 "universal partnership" to be envisaged and/or evidenced from a marriage out of community of property, I respectfully aver that a reliance upon the appearance of such a partnership must be corroborated objectively from extraneous facts. It is my respectful view, and with reference to the judgement from the Court a q u o , that upon a proper and judicial evaluation of the evidence presented on behalf of the Appellant, no such perception, let alone a reliance, could support her contention that a universal partnership existed between us.

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I again have ^,been advised that the Appellant is correct to allege that an express agreement is not necessarily required to constitute a universal partnership, but I again aver that the facts and evidence as presented in the Court a quo speak for themselves in respect of the manifestly separate lives, both financial and emotional, that the Appellant and I led throughout the course of our marriage. it is common cause that their was no joint bank account between us, there was no'sharing of expenses and/or profit from our various and independent business ventures, to the extent that all of Appellaet's commercial decisions were made without my involvement, Jet alone my consultation. This included the Appellant buying house in her name and establishing various business enterprises without my involvement and/or investment.

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10 AD PARAGRAPH 10 THEREOF'

I respectfully submit that the Appellant conceded in evidence that her numerous business ventures in no way contributed to the common benefit of our marriage, and in fact had had the opposite effect of resulting in severe economic prejudice to my business and

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myself. It is correct that I felt obliged, out of a feeling of ^personal duty to my extended family, my children, and business reputation, to bail the Appellant out of her various business ^misadventures. I am further advised that the findings as presented in the above Honourable Court's decision of Muhlmann V Miihlmann 1984 (3) SA 102 (A), have not been overturned in respect of what might be considered to be, the 'objective ^determination for implying An existence of a universal partnership between parties married out of community of property.

11, I respectfully aver that the alleged contributions made by the Appellant, in both time and finance, fall far short of what might be considered to be the threshold as set out in MOhlmann (supra)_ I submit that the Court a quo correctly upheld a factual finding that the Appellant and I led largely separate l i v e s , and that we were not involved in either the decision making and/or financial obligations of our various independent business ventures.

I ^respectfully deny the averment made herein. The Court a quo has made factual and c r e d i b i l i t y findings that I am advised a Court of Appeal would both rarely and loathly i n t e r f e r e w i t h .

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I deny that another Court could reasonably come to a finding that a universal partnership did exist between the Appellant and myself.

Unfortunately, the Appellant does not take the above Honourable

Court into her confidence by admitting that she made numerous concessions during the course of her evidence that she had made many previous statements under oath, which were false. I deny the averments made by the Appellant that I was a witness lacking in credibility, and submit that the contrary is indeed the case. The transcribed record of the evidence will clearly show that it was in fact the Appellant who was significantly evasive, ar^gumentative,

obstructive, and largely untruthful.

15 It is my respectful submission that the Appellant has been singularly disingenuous in the inaccuracy of her recollection of the evidence presented before the Court a quo, and her selective references are totally ^decontexturalised from the substance of her case and my defence.

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8 % 16 AD PARAPGRAPH 20 THEREOF

The Appellant seeks to attach undue significance to an averment that I had allegedly come to her assistance by paying certain debts in order to 'save my possessions'. The fact of the matter remains that not only was the Court a quo satisfied with my explanation pertaining to the given circumstances, but the evidence it self reflects that I felt personally obliged to pay off the significant debts incurred by the Appellant to prevent the indignity to myself, my extended family, our children, and my business reputation. The evidence before the Court a quo remains uncontradicted that on various occasions my family and I had been physically threatened by gangsters and debt collectors to pay over money that the Appellant herself, and she

alone, owed.

17 It was never suggested, or even alleged, before the Court a quo that I at any stage believed, or could have been under the mistaken perception, that a universal partnership existed between the

Appellant and myself.

18 In the circumstances, it is my respectful submission that there is no reasonable prospect of another Court coming to a different finding,

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and as such I ask that the ^Appellant's Application for Leave to

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Appeal be dismissed with costs.

9 1

I certify that on this day of presence at

20 04 in my the Deponent signed this affidavit and declared that he:-

1 ^knewand understood the contents thereof;

2 had no objection to taking this oath

3 ^considered the oath to be binding on his conscience

and uttered

"I swear that the

content.%of

this_

declaration fie true'

so p the

A rL. ^JE9,VEh"

COMMISSiONPR OF CATHS PRAISING A;TORNPY 4.5.A..

Rullo 1, Gl.emeor Hawn 1 9 D n l r n l i Rd, Alhloi,r., Cnpo 7764

elp, me God h

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