Z.B.K v S.M.S (24545/2015) [2018] ZAGPPHC 476 (23 March 2018)

Z.B.K v S.M.S (24545/2015) [2018] ZAGPPHC 476 (23 March 2018)

The court found that the applicant was not a co-owner of the property and had not established a universal partnership. Her claim was for a declarator and payment, which constitutes a personal right and a 'debt' under the Prescription Act. The relationship between the parties terminated in 2009, and the application was only issued in 2016, exceeding the three-year prescription period. The authorities relied upon by the applicant were distinguishable, as they involved established co-ownership or ongoing partnerships. Accordingly, the applicant's claim had prescribed and could not be entertained.

Citation
[2018] ZAGPPHC 476
Parties
Applicant: Z B K; Respondent: S M S
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 March 2018
Case Number
24545/2015
Procedural Posture
Civil Application / First Instance
Outcome
Application dismissed with costs.
Judges
Weiner
Legal Topics
Universal Partnership, Prescription Act, Cohabitation Claims, Declaratory Relief
Civil Procedure Commercial and Corporate Universal Partnership Prescription Act Cohabitation Claims Declaratory Relief

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 10 Party arguments 2
Sign in to unlock

Parties

Z B K

Applicant

S M S

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether a universal partnership existed between the applicant and respondent entitling the applicant to a share of the joint estate.
  2. 2 Whether the applicant's claim for dissolution and distribution of the partnership estate is subject to extinctive prescription under the Prescription Act.
  3. 3 Whether the applicant's claim constitutes a real right or a personal right for purposes of prescription.

Ratio Decidendi

The court found that the applicant was not a co-owner of the property and had not established a universal partnership. Her claim was for a declarator and payment, which constitutes a personal right and a 'debt' under the Prescription Act. The relationship between the parties terminated in 2009, and the application was only issued in 2016, exceeding the three-year prescription period. The authorities relied upon by the applicant were distinguishable, as they involved established co-ownership or ongoing partnerships. Accordingly, the applicant's claim had prescribed and could not be entertained.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicant is to pay the respondent's costs.