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[2013] ZAECPEHC 22
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Mncora v Butters; Butters v Mncora (881/2008, 3055/2010) [2013] ZAECPEHC 22; [2013] 3 All SA 330 (ECP) (23 April 2013)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case No: 881/2008
In the matter between:
NOMSA VIRGINIA MNCORA
..............................................................
Applicant
/
Plaintiff
and
ANDREW KINLOCH BUTTERS
................................................
Respondent/Defendant
AND
Case No: 3055/2010
In the matter between:
ANDREW KINLOCH BUTTERS
.....................................................
Respondent/Plaintiff
and
NOMSA VIRGINIA MNCORA
........................................................
Applicant/
Defendant
Coram:
Chetty, J
Date Heard:
2 April 2013
Date Delivered:
23 April 2013
Summary:
Practice
–
Judgments and orders –
Correction, alteration or amendment of Court’s own judgment –
Court entitled to do so to
give effect to its true intention
Nature of matter:
Application
for amendment of Court’s own judgment
Order:
Patent error must accordingly be corrected, so was
this order
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
[1] This application has been
precipitated by a personality trait akin to that of the main
character, Ebenezer Scrooge, the curmudgeon,
in Charles Dickens’
tale, A Christmas Carol. Since this matter first served before me, it
has ventured, unsuccessfully, first,
to the Supreme Court of Appeal,
and, thence, to the Constitutional Court. The principal issue in this
application, as in the preceding
litigation, is money, or, more
precisely, the unwillingness to share it. The respondent contends
that the subject matter of the
universal partnership I found to have
been established between himself and the applicant is confined to
assets acquired by the
parties during a defined period i.e. 1998 to
December 2007, and not, as contended for by the applicant, from 1988
to December 2007.
Henceforth I shall refer to the parties as referred
to in my earlier judgment, viz plaintiff and defendant,
[2] In order to
place this application in proper perspective, it is apposite to
consider the precise nature of a universal partnership.
In his
treatise,
Law
of Partnership
1
,
Professor
J.J Henning, with reference to eminent authority, described it as
follows: -
“
In
Roman and Roman-Dutch law universal partnerships were distinguished
into two kinds: first, those of all present and future property,
termed
societates
omnium bonorum
or
societates
universorum bonorum
and,
second, those extending only to everything acquired from every kind
of commerce, referred to as
societates
universorum quae ex quaestu veniunt
.
South African law
accommodates partnerships of all sorts satisfying the applicable
requirements. The distinction between the archetype
of universal
partnership, the
societas
omnium bonorum
,
and the partnership in all commercial undertakings, namely the
societas
universorum quae ex quaestu veniunt
,
is still relevant. This is particularly so since the question
whether, in which instances and to which extent universal
partnerships
of all property were and are recognised in South African
law, has not always been free from doubt.
The
partnership of all present and future property is the oldest and most
comprehensive form of universal partnership
.
Thus when the term “universal partnership” is used
without qualification, it is usually a reference to this kind of
universal partnership.
According
to one definition the partnership
omnium
bonorum
(or
universorum
bonorum
)
“
is
that by which the contracting parties agree to put in common all
their property, both present and future. It covers all their
acquisitions whether from commercial undertakings or otherwise”.
According to Pothier, all the property of each of the partners
at the
time of entering in the partnership becomes from that moment the
common property of the partnership, without formal transfer.
Every
asset is included in this partnership which comes to each of the
partners under any title, even by way of succession, gift
or legacy.
There
is no exception to this, except what comes to one of the partners on
condition that it will not fall into the partnership,
or what has
been acquired by criminal or dishonest means. Such a partnership is
liable for all the debts of each of the partners
due at the time of
entering into the partnership, as also for the debts which each of
the partners is compelled to incur during
the partnership, both for
himself and for his wife and family. This, however, does not extend
to waste of money in gambling, fines
or penalties on account of
crime.
The
societas
omnium
bonorum
is
probably the oldest and certainly the most comprehensive form of
consensual
societas
.
Having its origin in the ancient
consortium
of
sui
heredes
,
it retained much of the nature and character of the earlier
societas
fractum
.
Rules in the texts initially applicable to all
societas
,
notably the
beneficium
competentiae
,
were long applied only to this form. ”
(emphasis
added)
[3] In my judgment
I found that the three
essentialiae
of a universal
partnership, the
societas
universorum bonorum
,
formulated by
Pothier
,
and referred to in
Muhlmann
v Muhlmann
2
,
had been established, and awarded the plaintiff an amount equal to
30% of the defendant’s net asset value as at 1 January
2008.
The ratio for that finding appears clearly from the following factual
findings in the judgment, to wit: -
“
[24]
. . .
Although the plaintiff played no direct role in the growth and
expansion of the business
per
se
,
her contribution to the partnership was, in my view, not
inconsequential. The evidence establishes that the object of the
partnership
was to provide for the household. 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.
[26] Commercial reality
dictated that the business be opened in Grahamstown but the common
home continued to be in Port Elizabeth.
There was no guarantee that
the business would succeed. The plaintiff’s undisputed evidence
was that the choice of Grahamstown,
as the location of the business,
was a joint decision and the probabilities favour the plaintiff’s
version that the business
should be carried on for their joint
benefit. The object was clearly to make a profit. The acquisition of,
firstly, the home in
Overbaakens and thereafter the common home
demonstrates that the object of starting the business was to provide
for their livelihood
and comfort and the education of their children.
The enrolment of the children at St Georges, St Andrews and Parsons
Hill schools
respectively, bear testimony to the fact that the profit
was never intended to benefit the defendant alone. Although he
eventually
purchased a home in Grahamstown, it was used only during
the week while he managed the business, weekends were routinely spent
with the plaintiff and the children in Port Elizabeth. On those
occasions they shopped together, dined out, and, as recounted
earlier,
holidayed extensively, all of which was enjoyed on the
profits generated by the business.”
[4] On appeal, the majority, in
upholding the finding that the plaintiff had established the
requisites for a universal partnership,
dealt with the defendants
counter argument as follows: -
“
[26]
What the defendant's contention amounts to is that it must be
inferred from the conduct of the parties that, though they intended
to share the benefits of their joint contribution, the defendant
would retain the surplus income and accumulate assets only for
himself. From the plaintiff's viewpoint that intent would be
quite remarkable. It would mean that she intended to contribute
her
everything for almost 20 years to assist the defendant in acquiring
assets for himself only; that in her old age she would
be entirely
dependent for her very existence on the benevolence of the defendant
towards her.
[27]
It is true that, according to the defendant's ipse dixit during
his testimony, he indeed intended to keep everything he
acquired
for himself to the entire exclusion of the plaintiff. But I believe
there is more than one reason why this court is not
bound by the
defendant's self-serving ipse dixit. Firstly, it is clear from his
testimony that the defendant would say virtually
anything that
advanced his cause. Secondly, when evaluating the conduct of
the parties, the court is entitled to proceed
from the premise that
they were dealing with one another in good faith (see eg
South
African Forestry Co Ltd v York Timbers Ltd
2005
(3) SA 323 (SCA)
([2004]
4 All SA 168)
para 32). This must particularly be so where the
parties lived together in an intimate relationship in which they
shared their
most personal interests for almost 20 years. An
unexpressed mental reservation on the part of the defendant,
that he was
willing to share in the benefits derived from the
plaintiff's contribution, but not in the surplus fruits of his own,
would not,
in my view, satisfy the dictates of good faith. Finally
there is the plaintiff's own appraisal of the defendant's conduct,
namely,
that he was willing to share everything. Absent
any statements to her in cross-examination that her appraisal
was mistaken
or unsubstantiated, it must, in my view, be accepted as
reasonable and well founded. Hence I agree with the court a quo that
the
plaintiff had succeeded in establishing Pothier's second
requirement for a partnership.”
[5] It is explicit,
both from my judgment and the majority judgment in the Supreme Court
of Appeal, that the universal partnership
endured for approximately
20 years. The submission now advanced, that the Hi-Tech business is
specifically excluded from the universal
partnership, is spurious –
as a matter of law, the universal partnership comprises
“
all
present and future property
”
3
.
However, in light of the submissions advanced on behalf of the
defendant relating to the year date in both the plaintiff’s
prayer and my order, it is necessary to deal herewith.
[6] Notwithstanding
the clear and unambiguous findings in my judgment, the plaintiff has
been compelled to launch this application
pursuant to the provisions
of Rule 42 (1) (b) for a variation of paragraph 1 of the order by
deleting the date 1998 and its substitution
by the year date 1988.
The general principle is that once a court has pronounced a final
judgment or order, it itself has no authority
to correct, alter or
supplement it. There are of course a number of exceptions to this
general rule and one specifically relied
upon by the plaintiff is
that the year date in the order is a patent error. As pointed out by
Harms J.A, with reference to earlier
authority, in
Thompson
v South African Broadcasting Corporation
4
:
-
“
.
. . there appears to be a misunderstanding about the power of a Court
to amend or supplement its findings in contradistinction
to its
orders. The correct position was spelt out in
Firestone
South Africa (Pty) Ltd v Gentiruco AG
1977
(4) SA 298
(A)
at
307C - G:
'The
Court may correct a clerical, arithmetical or other error in its
judgment or order so as to give effect to its true
intention.
. . . This exception is confined to the mere correction of an error
in expressing the judgment or order; it does not
extend to altering
its intended sense or substance. Kotzé JA made this
distinction manifestly clear in [
West
Rand Estates Ltd v New Zealand Insurance Co Ltd
1926
AD 173
at 186 - 7], when, with reference to the old authorities, he
said:
''The
Court can, however, declare and interpret its own order or sentence,
and likewise correct the wording of it, by substituting
more accurate
or intelligent language so long as the sense and substance of
the sentence are in no way affected by such correction;
for to
interpret or correct is held not to be equivalent to altering or
amending a definitive sentence once pronounced.'' '
And
in
S
v Wells
1990
(1) SA 816 (A)
at
820C - F the matter was dealt with in these words:
'The
more enlightened approach, however, permits a judicial officer to
change, amend or supplement his pronounced judgment,
provided
that the sense or substance of his judgment is not affected thereby
(tenore substantiae perseverante
).
. . . According to
Voet
a
Judge may also, on the same day, after the pronouncement of his
judgment add (
supplere
)
to it all remaining matters which relate to the
consequences
of what he has already decided but which are still missing from his
judgment. He may also explain (
explicare
)
what has been obscurely stated in his judgment and thus correct
(
emendare
)
the wording of the record
provided
that the tenor of the judgment is preserved
.'
”
[7] The defendant’s response to
the plaintiff’s contention that the year date in paragraph 1 of
the order is a patent
error is rather ambivalent. On the one hand,
the submission was made that
“
the
defendant of course has no direct knowledge of what gave rise to the
insertion of the date 1998”
and,
on the other, it contends that the order, with minor exceptions,
merely mirrored the relief sought in prayer 1 of claim A to
the
amended particulars of claim. Mr
Buchanan
submitted that even on the assumption
that the aforestated prayer in the relief sought by the plaintiff
contained a typographical
error, the mistake was unilateral –
the defendant and his then legal representatives were unaware of the
error, and had conducted
their case on an acceptance of the
correctness of the allegations made by the plaintiff and the form of
the relief sought.
[8] He relied in this regard on the
depositions by the defendant’s erstwhile attorney and counsel.
In response to plaintiff’s
then counsel’s (Mr
Mullins
)
evidence in his supporting affidavit that the reference to the year
date 1998 was a typographical error, Mr
Huxtable
and Mr
de
la Harpe
stated as follows
respectively: -
(
Mr
Huxtable
)
“
6. I confirm
that Advocate de la Harpe and myself after a careful consideration of
the pleadings came to the conclusion that the
Plaintiff’s claim
was based on a tacit agreement of partnership, the date of which
coincides with the date of the agreement
to marry.”
(
Mr
de la Harpe
)
“
7. In all these
consultations Plaintiff’s Particulars of Claim were considered
carefully. On my advice it was concluded that
what was sought to be
advanced was a claim founded upon a tacit agreement of partnership
which coincided with an agreement to marry
during 1998.
8. Never was it
considered, having regard to that which was pleaded, that the case
sought to be advanced by Plaintiff was that immediately
the parties
became intimate, during 1988, that an express agreement was concluded
or that facts and circumstances existed such
as to justify the
conclusion that a tacit agreement of partnership was concluded.
9. In essence my
understanding of Plaintiff’s case was that which was to be
understood on a plain and obvious meaning of the
effect of that which
was pleaded, no more and no less.”
[9] The difficulty I have in accepting
the correctness of these averments arise from the trial particulars
furnished by the plaintiff
wherein she made the following
allegations: -
“
2.3
For
nineteen years
the Plaintiff contributed all her time and labour to the common
household and to making it a family home for the parties and their
two minor children.”
“
4.2 In setting
up a common home, having children, living together, acquiring assets
and remaining together for nineteen years the
parties tacitly agreed
to the establishment of a partnership.
4.3 The Plaintiff
acquired her personal belongings and a few household items during the
nineteen years
in which the parties were together.”
and
“
5.2
During
1990/1992
the
Plaintiff worked as a receptionist for the Department of Education
earning R2, 500.00 per month. She contributed her entire
income to
the partnership.”
(emphasis
added)
[10] One of the purposes which trial
particulars serve, is to inform the other side, with greater
precision, the case the one party
intends to prove in order to enable
his/her opponent to prepare accordingly. The plaintiff, in clear and
unambiguous language,
informed the defendant that the universal
partnership endured for nineteen years. Neither the defendant nor his
legal advisors
could therefore have been under any illusion that any
lesser period i.e. from the date they became engaged, was intended.
During
her oral testimony, portions of which I paraphrased and
reproduced in paragraph [3] hereinbefore, the plaintiff specifically
stated
that the universal partnership commenced at the inception of
their cohabitation and endured until the termination of their
relationship.
The cross-examination was directed to disprove the
plaintiff’s testimony. There was no suggestion made that the
universal
partnership endured merely since their engagement. The
defendant’s case, as presented and persisted with, not only at
trial,
but moreover on appeal to the Supreme Court of Appeal, and, in
the application for leave to appeal to the Constitutional Court,
was
that the plaintiff had failed to establish the existence of a
universal partnership between them,
caedit questio
.
[11] It will be gleaned from the
aforegoing and in the reproduced extracts of my judgment detailing
the plaintiff’s chronological
account of the inception and
duration of the universal partnership, 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.
[12] In the result therefore the
following orders will issue –
Paragraph 1 of the order is amended
by the deletion of the year date 1998 and its substitution by the
year date 1988.
The defendant is ordered to pay the
costs of this application.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
On behalf of the Applicant: Adv O.
Ronaasen
Instructed by Lulama Prince &
Associates
6 Du Toit Street
North End, Port Elizabeth
Tel: (041) 484 1004
Ref: Lulama Prince
On behalf of the respondent: Adv R.G.
Buchanan S.C
Instructed by Spilkins
15 Rink Street
Central, Port Elizabeth
Tel: (041) 582 1705
Ref: S P Spilkins
1
Transactions
of the centre of business law 45
2
1981
(4) SA 632
(W) at 634C
3
The
business, Hi-Tech form part of the universal partnership
4
2001
(3) SA 748
(SCA) at 748