Three High Court judges, sitting in Johannesburg, South Africa, as an Appeal Bench, have found an agreement between a now-estranged couple is invalid because the woman signed due to the ‘undue influence’ of her then partner. The agreement would have given the man half the sale price of the woman’s property if their relationship ended, which it did, just days after she signed, when he became violent and she obtained a protection order against him. The man then demanded his share of the property and business as detailed in the agreement. Although the trial court found in his favour, saying she had not signed the agreement under duress, the appeal judges closely analysed the details of their relationship and found clear signs of his ‘undue influence’ over her. They therefore held that she did not sign the agreement voluntarily and thus effectively set it aside.
Sometimes, to the relief of ordinary people, the courts actually seem to “get it” when it comes to complex inter-personal relations. Or so I feel after reading a decision from a full bench of the high court, Johannesburg. It involved a couple, previously in a romantic as well as a business relationship. The man turned out to be a bi-polar bully, domineering, violent and determined to get his own way, while the woman was placatory, fearful and unduly influenced by him.
The dynamics between the two people, Shayne Isaacs and Deon Potgieter, matter a great deal, because they both signed a legal document agreeing that the property on which they lived and which she owned, was half his. The agreement also stated that if they were ever to dissolve their partnership, or sell the property, they would both get half its value.
Within a fortnight of their signing this document, the relationship ended when the man violently assaulted the woman and she obtained a protection order against him.
Given the breakup, what was the standing of the signed agreement between them? Should it be enforced, as the man demanded? The trial court said that it was binding and effective: Potgieter had to get his half share. But when Isaacs took that finding on appeal, three judges of the high court in Johannesburg unanimously disagreed with the initial decision.
They said the trial judge had focused on the question of “duress” without considering whether the man had “undue influence” over her.
In a judgment that carefully considers the behaviour of all the parties – two lawyers as well as the couple involved – the full bench commented that the high court found the history of abuse by the man, “which the (trial) judge seemingly accepted had been established on the evidence, was nevertheless not causally connected to the decision by (the woman) to sign the agreement.”
“We disagree. The correct question to ask was whether the evidence, holistically evaluated,” corroborated the woman’s claim that she signed the agreement as a result of duress or undue influence by her then romantic partner.
The trial court found no proof of “imminent unlawful threat to life” that would have induced her to sign. However, that court had not dealt with the separate question of “undue influence”, said the appeal judges. This involved a scenario in which the aggrieved person was subjected to influence by another that weakened his or her capacity to resist, and made them pliable. The other person then exploited this influence, persuading the aggrieved person to agree to a transaction which was to the detriment of the aggrieved person and which would not have been concluded if the aggrieved person had acted of their own free will.
In the view of the appeal judges, that is precisely what happened in the case of Isaacs and Potgieter.
During the course of the judgment, the couple’s interaction with two different attorneys also became crucial.
At some stage after the couple’s relationship began, they moved into a house on her extensive property and lived there with her children. In the run-up to the 2010 soccer world cup, the idea was hatched to run an accommodation business from their property. He had expansive plans and began a huge renovation and building project; she was concerned about the scale and expense involved.
During December 2009, Isaacs and Potgieter consulted the attorney handling her divorce from her estranged husband. Potgieter wanted recognition of what he claimed was his 50 percent “interest” in her property. But Isaacs’s attorney, acting with “impeccable professionalism”, refused to draw up such a document, saying Potgieter had not shown that he had spent what he claimed.
Instead of agreeing to provide evidence of his contributions in order to answer the attorney’s quite reasonable questions, Potgieter erupted. According to Isaacs, once home he threatened to burn the place down, kill her dogs and “bring her to despair” unless she signed such an agreement. Some of this is admitted by Potgieter but he described it as an “exaggerated threat”. She claims he also punched her and knocked her to the ground.
Potgieter then went alone to see another attorney, asking that an agreement be drawn up along the lines he wanted. As the appeal judges would later point out, this attorney was clearly Potgieter’s adviser, whose brief was to protect Potgieter’s interests as against Isaacs.
When the draft was ready, Potgieter took Isaacs to the attorney’s office to sign the papers. She said she had not seen the draft before and the attorney said he did not explain the agreement to her.
The attorney said he noticed tension between the couple and at one stage Isaacs said she did not want to sign. The attorney then left the room. On his return, she said she would sign, a change of heart that made the court ask what had happened in the interim.
The appeal judges analyse these and other interactions closely. They looked at letters sent to Potgieter by Isaacs and concluded they were “plainly placatory”. They examined the history of abuse between them, the misuse of dagga and alcohol as well as medication taken by Potgieter for a bi-polar condition.
They conclude that the evidence showed she “succumbed to bullying and undue pressure to placate her lover and not because she freely (agreed) with the terms (of the document).” She showed an emotional dependence on Potgieter’s approval and acted under that influence. “The subsequent placatory acts by Isaacs must be understood to be the result of badgering and displays of anger and violence.”
Since Isaacs signed the agreement as a result of Potgieter’s undue influence, rather than voluntarily, the appeal had to succeed, with costs, they ruled.
For me, the appeal judges’ decision on this domestic drama shows a welcome and growing judicial sensitivity to the reality of ordinary people’s lives and the potential for terrible legal, financial and emotional consequences resulting from subtle – and not so subtle – abuse.
Women are most often on the receiving end of such abusive relationships, and this seems a classic case, with counsel for Potgieter attacking the credibility of Isaacs via what the court termed, “(t)he old refrain of ‘why didn’t you leave; no-one would have tolerated such abuse’?” Fortunately, in this case at least, the judges did not accept such a glib and outdated approach but sensitively evaluated evidence of how the relationship actually worked.
- “A matter of justice”, Legalbrief, 26 February 2019