Butters v Mncora (181/2011) [2012] ZASCA 29; 2012 (4) SA 1 (SCA); [2012] 2 All SA 485 (SCA) (28 March 2012)

Butters v Mncora (181/2011) [2012] ZASCA 29; 2012 (4) SA 1 (SCA); [2012] 2 All SA 485 (SCA) (28 March 2012)

The majority held that the requirements for a universal partnership are not confined to commercial undertakings and that non-financial contributions, such as maintaining the home and raising children, may satisfy the elements of a partnership. The evidence established that the respondent contributed to the joint enterprise and shared in the benefits of the appellant's financial contributions. The conduct of the parties indicated a tacit agreement to share profits and assets, and the respondent's expectation of sharing was reasonable and unchallenged. The court found that the respondent succeeded in establishing a tacit universal partnership and was entitled to a share of the assets...

Citation
[2012] ZASCA 29
Parties
Appellant: Andrew Kinloch Butters; Respondent: Nomsa Virginia Mncora
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 March 2012
Case Number
181/2011
Procedural Posture
Civil Appeal / Appeal From Eastern Cape High Court, Port Elizabeth
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Brand, Heher, Cachalia, Mhlantla, Tshiqi
Legal Topics
Universal Partnership, Cohabitation, Tacit Agreement, Division of Property, Onus of Proof
Civil Procedure Family and Children Universal Partnership Cohabitation Tacit Agreement Division of Property Onus of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

Andrew Kinloch Butters

Appellant

Nomsa Virginia Mncora

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape High Court, Port Elizabeth

Legal Issues

  1. 1 Whether a tacit universal partnership existed between the parties during their cohabitation.
  2. 2 Whether the respondent contributed sufficiently to the alleged partnership to warrant a share in the appellant's assets.
  3. 3 Whether the requirements for a universal partnership, as formulated by Pothier, were satisfied in this case.

Ratio Decidendi

The majority held that the requirements for a universal partnership are not confined to commercial undertakings and that non-financial contributions, such as maintaining the home and raising children, may satisfy the elements of a partnership. The evidence established that the respondent contributed to the joint enterprise and shared in the benefits of the appellant's financial contributions. The conduct of the parties indicated a tacit agreement to share profits and assets, and the respondent's expectation of sharing was reasonable and unchallenged. The court found that the respondent succeeded in establishing a tacit universal partnership and was entitled to a share of the assets...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.