A man who gave up to R700,000 to his mistress pending a possible divorce has lost his court bid to have the money returned after he decided to remain with his wife.
The Johannesburg high court found no merit in the case, though he can bring the case again if he brings better evidence.
In 2015, a man known as “HW” started an extramarital affair with a woman known as “RS”. He was — and remains — married to his wife, “SJW”, in community of property. That meant that HW and SJW shared everything equally, including their property and finances.
In 2017, HW withdrew almost R1m in cash from his investment account. He was planning on divorcing SJW and did not want her to have access to this money. Of this almost R1m, he gave his mistress about R700,000 that she stored in her bedroom.
After HW had a turbulent fallout with his mistress, he rekindled his relationship with his wife and did not follow through with the divorce. Towards the end of 2017, he demanded repayment of what he said was a “loan”.
His mistress, however, believed the money was a donation to help wind up a small business she ran. HW then sued his now former mistress for repayment.
Johannesburg high court judge Stuart Wilson, however, found no merit in the case, as a result of “substantially uncreditworthy evidence” that did not bolster either side’s case.
“Neither party has proved their case,” he ruled and the matter was effectively removed. HW can bring the case again, however, on better evidence.
Wilson noted that the central question was whether the about R700,000 HW gave to his former mistress was a loan or, as she believed, a donation.
All the court was provided were WhatsApp exchanges, documentation from HW’s bank account and RS’s company account into which money was later transferred.
HW’s evidence was labelled “very poor”. Though he managed to prove some aspects that the money was a loan, Wilson was left with “serious doubts about his credibility and reliability”. He noted that the entire basis of this transaction was based on “dishonesty” or “a scheme to spirit money away from his wife”.
He said there were aspects missing to HW’s evidence and the logic did not follow.
“It beggars belief,” Wilson wrote, “that HW would place so much money in [his ex-mistress’s] hands if, at the time, his intent was not to share it with her.”
Promises or indications of leaving his wife were at play and she had reasonable grounds to believe he was going to leave his wife and they would spend their life together.
Worse for HW was that he “could not say what the loan was for”. There were no witnesses or documentation that indicated the money was a loan. He claimed to have no knowledge about her small business, but Wilson said: “I find that impossible to credit.”
It also did not make sense to lend someone money who was in financial distress, and then immediately demand repayment.
In contrast, Wilson found the former mistress to be “an impressive witness”. She viewed the money as a “down payment on her future with HW”.
Wilson said though that the evidence was damning. The first piece of evidence was a set of messages exchanged between the two in which HW demanded repayment and she promised to pay. There was a “consistent failure” in her correspondence with HW “to deny the money ... was a loan”. She told Wilson she was avoiding conflict.
Furthermore, in her own books of account, some of the money HW paid over was listed as a “loan”. She told the judge this was a way to avoid paying tax.
But Wilson said he was left with “mutually destructive versions”. In the end, he ruled that “the only conclusion available on these facts is that neither party has proved their case”.
However, because the onus was on HW, who brought the case, he was ordered to pay costs.
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