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[2014] ZASCA 86
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Butters v Mncora (419/13) [2014] ZASCA 86; [2014] 3 All SA 259 (SCA) (30 May 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 419/13
In
the matter between:
ANDREW
KINLOCH
BUTTERS
........................................................................................
Appellant
and
NOMSA
VIRGINIA
MNCORA
.............................................................
Respondent
Neutral
citation:
Butters v Mncora
(419/13)
[2014] ZASCA 86
(30 May 2014)
Coram:
Shongwe, Wallis, Willis JJA, Mathopo
and Mocumie AJJA
Heard:
23 May 2014
Delivered:
30 May 2014
Summary:
Civil Procedure – interpretation
of Rule 42(1)
(b)
and
(c)
–
circumstances in which court can alter or
amend judgment or order – universal partnership –
relevance of commencement
date – not relevant.
ORDER
On
appeal from: Eastern Cape High Court, Port Elizabeth (Chetty J
sitting as court of first instance):
1
The order of the high court is varied to read:
‘
paragraph
1 of the order granted in case no. 881/08 is amended as follows:
“
It
is declared that a universal partnership existed between the
plaintiff and the defendant in respect of all assets acquired by
them
up to 15 November 2007.”’
2
Save for the above variation, the appeal is otherwise dismissed.
3
The appellant is to pay the respondent’s costs in this appeal,
including costs of two counsel, where employed.
JUDGMENT
Shongwe
JA (Wallis, Willis JJA, Mathopo and Mocumie AJJA concurring)
[1]
On 7 December 2010 (in case no. 881/08) the Eastern Cape High Court,
Port Elizabeth (Chetty J) made an order against the appellant,
inter
alia
, that ‘It is declared that a
universal partnership existed between the plaintiff [respondent] and
the defendant [appellant]
of all assets acquired by them during the
period 1998 to 15 November 2007’. The appellant unsuccessfully
appealed to this
Court and his application for leave to appeal to the
Constitutional Court suffered the same fate. Subsequently, the
respondent
applied to the high court in terms of Rule 42(1)
(b)
of the Uniform Rules of Court,
alternatively the common law, to have the aforesaid order varied by
replacing the year 1998 with
the year 1988. The application was
granted. This appeal is with the leave of the high court.
[2]
The facts are largely common cause. The undisputed evidence shows
that the appellant and the respondent met each other for the
first
time at a party in Grahamstown in 1988 and fell in love. Two children
were born of the relationship. In or about 1993 they
lived together
in Port Elizabeth as husband and wife. In the meantime, the appellant
had started a business, which flourished and,
as a result, the
appellant accumulated substantial assets. Cracks in the relationship
appeared and the final break came when the
appellant married another
woman on 15 November 2007 without the respondent’s knowledge.
The relationship came to an end.
(For a detailed account of the facts
see reported case
Butters v Mncora
2012 (4) SA 1
(SCA)).
[3]
As has already been mentioned, the respondent successfully applied to
the high court for a declaration that a universal partnership
existed
in respect of all their assets, which were principally in the nominal
ownership of the respondent. In granting the application,
the high
court also ordered that the universal partnership be dissolved with
effect from 15 November 2007 and that the respondent
was entitled to
be paid 30 per cent of the nett proceeds of the assets.
[4]
After the appellant unsuccessfully applied for leave to appeal to the
Constitutional Court, negotiations commenced between the
parties to
have the matter resolved finally in accordance with the court order.
On 22 May 2012 the appellant’s attorneys
wrote to the
respondent’s attorneys advising them that there may not be a
need to appoint a receiver and liquidator to realise
the assets of
the universal partnership. They were prepared to submit an audited
statement of the assets acquired by both parties
between 1998 and 15
November 2007. The appellant also indicated that if the audited
statement was acceptable to the respondent’s
auditors, the
parties could agree to a distribution of 30 per cent payable to the
respondent, without the necessity of appointing
a receiver and
liquidator. The basis for this proposal was the reference in the
order to assets acquired by the parties from 1998.
The appellant’s
aim was to exclude from the distribution the bulk of the assets and
in particular the source of his wealth,
being the successful business
he had established.
[5]
Thereupon, the respondent indicated that the year 1998 in the order
of the high court was a typographical error and it should
have read
1988 because it was common cause, so respondent argued, that 1988 was
the year in which the parties first met and commenced
their
relationship. As a result, a dispute arose. The respondent brought an
application in terms of Rule 42(1)
(b)
,
alternatively the common law, to correct what was alleged to be a
patent error. In a supplementary affidavit, the respondent introduced
a further alternative claim based on Rule 42(1)
(c)
that the reference to 1998 in the order
was the result of a mistake common to the parties. The appellant
opposed this application.
Hence the judgment of Chetty J handed down
on 23 April 2013 which is the subject of this appeal.
[6]
It is instructive to note what the respondent had requested the high
court to order. The respondent asked the high court to
vary paragraph
A1 of the order of Chetty J, dated 7 December 2010, to read 1988
instead of 1998 in terms of Rule 42(1)
(b).
In addition, ‘irrespective of the outcome of Prayer 1 above,
paragraph A1 of the said order be interpreted to include all
assets
acquired by the parties of whatever nature and whenever acquired
which they possessed as at 15 December 2007’.
[7]
The high court found in favour of the respondent. It concluded that
‘the year date 1998, in the order, was a patent typographical
error. Its substitution, by the year date 1988, does not change the
sense or substance of the judgment – it merely preserves
its
tenor. The patent error must accordingly be corrected’
[8]
The issues for determination before this Court are whether the high
court had the authority to vary its own judgment or order
and whether
the alleged patent error was attributable to the high court itself
rather than to the respondent’s legal representative.
Uniform
Rule 42(1) reads as follows:
‘
(1)
The court may, in addition to any other powers it may have,
mero
motu
or upon the application of any
party affected, rescind or vary:
(a)
An order or judgment erroneously sought
or erroneously granted in the absence of any party
affected thereby;
(b)
an
order or judgment in which there is an ambiguity, or a patent error
or omission, but only to the extent of such ambiguity, error
or
omission;
(c)
an
order or judgment granted as the result of a mistake common to the
parties.’
[9]
The appellant submitted that the factual foundation for the year date
1998 was because it was the year in which the parties
agreed to
marry. Therefore, so the reasoning went, the high court ought not to
have varied the order to 1988. Counsel for the appellant
argued that
the year date 1998 was not a patent error because the respondent
pleaded her case in the particulars of claim as such.
Therefore, he
argued further that the court order was simply a regurgitation of
what was pleaded. He submitted that the initial
judgment of Chetty J
was correct and that this Court cannot at this late stage interfere
with that order in the absence of an amendment
of the particulars of
claim. This submission is flawed because it misunderstands the
purpose of pleadings. De Villiers JA in
Shill v Milner
1937 AD
101
at 105 quoted Innes CJ as saying that:
‘
The
object of pleading is to define the issues; and parties will be kept
strictly to their pleas where any departure would cause
prejudice or
would prevent full inquiry. But within those limits the Court
has wide discretion. For pleadings are made for
the Court, not the
Court for pleadings. Where a party has had every facility to place
all the facts before the trial Court and
the investigation into all
the circumstances has been as thorough and as patient as in this
instance, there is no justification
for interference by an appellate
tribunal merely because the pleading of the opponent has not been as
explicit as it might have
been.’
(See
Robinson v Randfontein Estates G M Co
Ltd
1925 AD 173).
[10]
In this case, the date upon which the universal partnership was
alleged to have commenced was part of the narrative of events,
rather
than a vital element of the scope and ambit of the partnership.
The high court observed that –
‘
[24]
…. Although
the plaintiff worked for
short periods during the couples’ cohabitation, there is no
evidence to suggest that she applied
her earnings for herself. In the
formative years of the business, the plaintiff lived frugally and was
content with the R1000,
00 weekly contributions made by the
defendant. She devoted all her time and energy in caring for the
children, and, during weekends,
for the defendant himself. As the
children grew up, her care for them was akin to full time employment.
She not only ferried them
to and from school but transported them to
their extra-curricular activities.
[25]
It must be recalled that during the
subsistence of her cohabitation the children, whom she was required
to care for and look after,
increased in number. Her contribution in
that sphere was immeasurable and the clear impression gained from her
testimony is that
she applied herself fully, not only to the
children’s well being, but the defendant’s, as well. Her
evidence that she
implemented a dietary regime for the defendant for
health reasons, given his weight gain, was never challenged and
provides clear
proof that her overriding concern was the well being
of the family unit. Some point was made during the plaintiff’s
cross-examination
that many, if not all, the household chores were
performed by the domestic help. The fact that the plaintiff had full
time, weekday
help is, in my view, entirely irrelevant. Given her
circumstances, in effect, a full time single mother to four children,
she needed
all the help she could get.’
[11]
These findings were confirmed and supplemented by this Court where
Brand JA observed that –
‘
[18]
In this light our courts appear to be supported by good authority
when they held, either expressly or by clear implication
that:
(a) Universal
partnerships of all property which extend beyond commercial
undertakings were part of Roman Dutch law and still form
part of our
law.
(b) A universal
partnership of all property does not require an express agreement.
Like any other contract it can also come into
existence by tacit
agreement, that is by an agreement derived from the conduct of the
parties.
(c) The requirements
for a universal partnership of all property, including universal
partnerships between cohabitees, are the same
as those formulated by
Pothier for partnerships in general.
(d) Where the
conduct of the parties is capable of more than one inference, the
test for when a tacit universal partnership can
be held to exist is
whether it is more probable than not that a tacit agreement had been
reached.
(See eg
Ally v
Dinath
1984 (2) SA 451
(T) at 453F-455A;
Mühlmann v
Mühlmann
1981 (4) SA 632
(W) at 634A-B;
Mühlmann v
Mühlmann
1984 (3) SA 102
(A) at 109C-E;
Kritzinger v
Kritzinger
1989 (1) SA 67
(A) at 77A;
Sepheri v Scanlan
2008
(1) SA 322
(C) at 338A-F;
Volks NO v Robinson
2005 (5) BCLR 44
(CC) para 125;
Ponelat v Schrepfer
2012 (1) SA 206
(SCA) paras
19-22; J J Henning
Law of Partnership
(2010) 20-29; 19
Lawsa
2 ed para 257.)
[19] Once it is
accepted that a partnership enterprise may extend beyond commercial
undertakings, logic dictates, in my view, that
the contribution of
both parties need not be confined to a profit making entity. The
point is well illustrated, I think, by the
very facts of this case.
It can be accepted that the plaintiff’s contribution to the
commercial undertaking conducted by
the defendant was insignificant.
Yet she spent all her time, effort and energy in promoting the
interests of both parties in their
communal enterprise by maintaining
their common home and raising their children. On the premise that the
partnership enterprise
between them could notionally include both the
commercial undertaking and the non-profit making part of their family
life, for
which the plaintiff took responsibility, her contribution
to that notional partnership enterprise can hardly be denied.
…
[23] The plaintiff’s
case is not that she and the defendant had entered into a commercial
partnership which was confined to
the Hitech business. Her case is
that they had entered into a partnership which encompassed both their
family life and the business
conducted by the defendant. In view of
what I have said earlier, I have no conceptual difficulty with a
partnership agreement in
those terms. The validity of the plaintiff’s
proposition that they tacitly agreed to share everything, including
the income
of the business conducted by the defendant, must therefore
be approached from that vantage point.’
[12]
It is clear that the appellant’s case was not, in truth,
concerned with when the universal partnership began. Rather
it has
been about him denying the existence of a universal partnership all
together and his refusing to share anything with the
respondent. The
essence of the dispute was the sharing of the assets of the parties
and not the date of commencement of the universal
partnership.
[13]
Once the high court and this Court found that a universal partnership
existed, the commencement date of such partnership was
irrelevant.
However the date of termination was relevant. The question whether or
not a universal partnership came into existence
was decided by the
high court and confirmed by this Court on appeal. This appeal before
us is not about redefining a universal
partnership but about
determining the correctness of the variation.
[14]
The general rule, now well established in our law, is that once a
court has duly pronounced a final judgment it has no authority
to
correct, alter or supplement it. The reason is that its jurisdiction
in the case having been finally exercised has ceased. (See
Firestone
South Africa (Pty) Ltd v Genticuro AG
1977 (4) SA 298
(A) at 306 F-H;
West
Rand Estates Ltd v New Zealand Insurance Co Ltd
1926
AD 173
at 176, 178, 186 – 7 and 192.)
[15]
However there are exceptions to this rule. The principle that a court
may clarify its judgment or order if, on a proper interpretation,
the
meaning remains uncertain and it seeks to give effect to its true
intention is trite. The sense and substance of the order
ought not to
be altered. (
See Mostert NO v Old Mutual
Life Assurance Co (SA) Ltd
2002 (1) SA
82
(SCA) para 5.)
[16]
The high court reasoned that the year date 1998 was a typographical
error in the particulars of claim of the respondent in
the trial
action. I agree
that its inclusion
was clearly a patent error in the first place,
inasmuch as it was irrelevant and unnecessary but the substitution
and variation
thereof was incorrect. It was incorrect because it went
against the evidence adduced during the trial and also against the
body
of the ratio decidendi of the high court as well as this Court’s
reasons for dismissing the appeal.
The
order must therefore be varied to give effect to the conclusions of
the trial court as endorsed by this Court.
[17]
Brand JA elegantly summed up
the conclusion
by this Court
as follows-
‘
[31]
To complete the picture: the defendant did not argue – and I
believe rightly so – that the third element of a partnership
in
terms of Pothier’s formulation had not been satisfied. On all
the evidence it is clear that the all-embracing venture
pursued by
the parties, which included both their home life and the business
conducted by the defendant, was aimed at a profit;
a profit which, in
my view, they tacitly agreed to share. On the only issue before us, I
therefore agree with the finding of the
court a quo, that the
plaintiff had succeeded in establishing a tacit universal partnership
between her and the defendant.’
[18]
In the result the following order is made:-
1 The order of the
high court is varied to read:
‘
paragraph
1 of the order granted in case no. 881/08 is amended as follows:
“
It
is declared that a universal partnership existed between the
plaintiff and the defendant of all assets acquired by them up to
15
November 2007.”’
2 Save for the above
variation, the appeal is otherwise dismissed.
3 The appellant is
to pay the respondent’s costs in this appeal, including costs
of two counsel, where employed.
_______________________
J
B Z SHONGWE
JUDGE
OF APPEAL
Appearances
For
the Appellant: R G Buchanan SC
Instructed
by:
Spilkins
Inc, Port Elizabeth;
Symington
& De Kok, Bloemfontein.
For
the Respondent: A Beyleveld SC with him O H Ronaasen
Instructed
by:
Lulama
Prince & Associates, Port Elizabeth;
Honey
Attorneys, Bloemfontein.