Butters v Mncora (419/13) [2014] ZASCA 86; [2014] 3 All SA 259 (SCA) (30 May 2014)

Butters v Mncora (419/13) [2014] ZASCA 86; [2014] 3 All SA 259 (SCA) (30 May 2014)

The Supreme Court of Appeal held that the reference to 1998 in the original high court order was a patent error and not relevant to the substance of the judgment. The commencement date of the universal partnership was part of the narrative and not a vital element of the partnership's scope. The court found that the high court was empowered under Rule 42(1)(b) to correct the error, as it did not alter the sense or substance of the judgment but merely preserved its tenor. The appellant's argument regarding pleadings was rejected, as the evidence and findings established the existence of a universal partnership irrespective of the specific commencement date. The order was varied to declare...

Citation
[2014] ZASCA 86
Parties
Appellant: Andrew Kinloch Butters; Respondent: Nomsa Virginia Mncora
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 May 2014
Case Number
419/13
Procedural Posture
Civil Appeal / Appeal From Eastern Cape High Court, Port Elizabeth
Outcome
Appeal dismissed except for variation of the high court order; costs awarded to respondent including costs of two counsel.
Judges
Shongwe, Wallis, Willis, Mathopo, Mocumie
Legal Topics
Universal Partnership, Variation of Court Order, Cohabitation, Rule 42 Uniform Rules, Tacit Agreement
Civil Procedure Family and Children Universal Partnership Variation of Court Order Cohabitation Rule 42 Uniform Rules Tacit Agreement

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 the high court had authority to vary its own judgment or order under Rule 42(1)(b) and (c).
  2. 2 Whether the reference to the year 1998 in the original order was a patent error or typographical mistake.
  3. 3 Whether the commencement date of the universal partnership was relevant to the scope of the order.

Ratio Decidendi

The Supreme Court of Appeal held that the reference to 1998 in the original high court order was a patent error and not relevant to the substance of the judgment. The commencement date of the universal partnership was part of the narrative and not a vital element of the partnership's scope. The court found that the high court was empowered under Rule 42(1)(b) to correct the error, as it did not alter the sense or substance of the judgment but merely preserved its tenor. The appellant's argument regarding pleadings was rejected, as the evidence and findings established the existence of a universal partnership irrespective of the specific commencement date. The order was varied to declare...

Court Disposition

Appeal dismissed except for variation of the high court order; costs awarded to respondent including costs of two counsel.

Orders

  • Paragraph 1 of the order granted in case no. 881/08 is amended to declare that a universal partnership existed between the plaintiff and the defendant in respect of all assets acquired by them up to 15 November 2007.
  • Save for the above variation, the appeal is otherwise dismissed.