Khan v Shaik (641/2019) [2020] ZASCA 108; 2020 (6) SA 375 (SCA) (21 September 2020)

Khan v Shaik (641/2019) [2020] ZASCA 108; 2020 (6) SA 375 (SCA) (21 September 2020)

The Supreme Court of Appeal held that a claim to share in the fruits of a universal partnership is a personal right arising from contract, not a real right. Such a claim constitutes a 'debt' under the Prescription Act and prescribes after three years from the termination of the universal partnership, as per section 11(d). The date of termination is a factual determination; in this case, the universal partnership ended when the consortium ended, which was six years before the claim was instituted. The appellant's argument that prescription only begins upon court dissolution was rejected. The court found no basis for equating universal partnership rights with joint ownership as in community...

Citation
[2020] ZASCA 108
Parties
Appellant: Zorah Banoo Khan; Respondent: Salim Mohamed Shaik
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 September 2020
Case Number
641/2019
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg
Outcome
Appeal dismissed with costs.
Judges
Cachalia, Saldulker, Nicholls, Matojane, Sutherland
Legal Topics
Prescription Act, Universal Partnership, Personal Vs Real Rights, Division of Partnership Assets
Civil Procedure Commercial and Corporate Prescription Act Universal Partnership Personal Vs Real Rights Division of Partnership Assets

Case Brief

Summary, issues, holding and outcome

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Parties

Zorah Banoo Khan

Appellant

Salim Mohamed Shaik

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg

Legal Issues

  1. 1 Does a claim to divide the fruits of a universal partnership prescribe under the Prescription Act?
  2. 2 Is the right to share in a universal partnership a personal or a real right?
  3. 3 When does prescription begin to run for a claim to share in a universal partnership?

Ratio Decidendi

The Supreme Court of Appeal held that a claim to share in the fruits of a universal partnership is a personal right arising from contract, not a real right. Such a claim constitutes a 'debt' under the Prescription Act and prescribes after three years from the termination of the universal partnership, as per section 11(d). The date of termination is a factual determination; in this case, the universal partnership ended when the consortium ended, which was six years before the claim was instituted. The appellant's argument that prescription only begins upon court dissolution was rejected. The court found no basis for equating universal partnership rights with joint ownership as in community...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.