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[2014] ZAGPPHC 238
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R.G.D v T.E.D (29538/2013) [2014] ZAGPPHC 238; 2014 (4) SA 200 (GP) (28 February 2014)
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IN THE
NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
Number: 29538/2013
Date:
28 February 2014
In
the matter between:
R[…]
G[…]
D[…]
.............................................................................................
Applicant/Plaintiff
and
T[…]
E[…]
D[…]
........................................................................................
Respondent/Defendant
JUDGMENT
DE
KLERK AJ
[1]
This is an exception brought by the
Plaintiff in terms of Rule 23 (1) of the Uniform Rules of Court on
the basis that the Defendant’s
Counterclaim lacks averments
required to disclose a cause of action.
[2]
The crux of the exception, as is evident
from the grounds upon which the exception is founded, is that the
Defendant’s allegation
of a universal partnership constitutes
an attempt to
postulate an amendment to
the parties' Antenuptial Contract, which is legally untenable.
[3]
It is common cause that the parties were
married to each other on 2[…], out of community of property,
and with the exclusion
of the accrual system.
[4]
It is further common cause that the
parties’ Antenuptial Contract excludes community of profit and
loss.
[5]
The Defendant counterclaims, for amongst
others, a declarator that a universal partnership came into existence
between the parties.
[6]
This claim was premised on an alleged
verbal, alternatively tacit, further alternatively implied agreement
entered into between
the parties during or about January 2012 in
respect of a “business venture being a fish farming business.”
[7]
It is further common cause that the
essence of a partnership agreement is the intention to share in the
profits generated by the
activities thereof.
[8]
The relevant grounds upon which the
exception is founded are set out as follows in the Plaintiff’s
Notice of Exception:
“
1.
In paragraph 3 of the Counterclaim, the Defendant repeats the
contents of paragraph 4 of the Plaintiff’s Particulars of Claim
as if part thereof and thus allege that the parties were married out
of community of property.
2.
Clause
5 of the parties’ Antenuptial Contract provides that there
shall be no community of profit and loss between the parties,
but
that each of them shall respectively retain the profits made by or
accruing to him or her, and shall in like manner separately
and
solely bear and sustain the losses happening to him or her during the
subsistence of the marriage.
3.
It
is well-established in law that parties may not post- nuptially amend
an Antenuptial Contract, save as provided for in
Section 21
of the
Matrimonial Property Act, 1984
.
4.
There
are no allegations that the provisions of
Section 21
of the
Matrimonial Property Act, 1984
were complied with regarding the
amendment of the parties’ Antenuptial Contract.
5.
The
Defendant’s allegations of an oral alternatively tacit,
alternatively implied universal partnership agreement regarding
the
assets and liabilities of the fish farming business contained in
paragraphs 5, 6, 7 and 8 of the Counterclaim, and the relief
sought
in prayer 2, constitute an attempt to postulate an oral,
alternatively tacit, alternatively implied amendment of the parties’
Antenuptial Contract, which is bad in law...”
[9]
It was contended by Mr Wagener on behalf
of the Plaintiff that the fundamental contention underlying the
exception was that the
provisions of the Antenuptial Contract
precluded the existence of the alleged partnership.
[10]
In urging same, Mr Wagener pointed out
that the parties in their Antenuptial Contract expressly agreed to
not share in profit and
loss. The Defendant’s Counterclaim
alleging the existence of a partnership that includes the profit
generated by the fish
farming business is thus directly at variance
with the express terms of the Antenuptial Contract.
[11]
In support of same Mr Wagener referred
to the case of Pezzutto v Dreyer /992 (3) SA 379 A at 390 where it
was held that the three
essentialia of a partnership are “(1)
that each of the partners brings something into the partnership
whether it is money,
labour or skill; (2) that the business should be
carried on for the joint benefit of the parties; and (3) that the
object should
be to make a profit.”
Consequently
so the argument correctly runs the very essence of a partnership
agreement is the intension to share in the profits
generated by the
activities thereof.
[12]
Mr Wagener further referred to the cases
of JW v CW
2012 (2) SA 529
NCK as well as E: AL v E: CE the
unreported Judgment of the South Gauteng High Court, Johannesburg
under case number 09/25924 dated
25 October 2012, in support of the
contention that the provisions of the Antenuptial Contract precludes
the existence of the alleged
partnership.
[13]
I do not agree with the contention by Mr
Wagener that the provisions of the Antenuptial contract precluded the
existence of the
alleged partnership.
[14]
I also do not agree that the two cases
referred to by Mr Wagener support such a contention
[15]
In my view a distinction should
be drawn between the two kinds of universal partnerships, to wit
societas universorum bonorum and
a societas universorum quae ex
quaestu veniunt.
[16]
In the case of Butters v Mncora 2012 (4) SA / SCA it was held in this
regard that:
"It
appears to be uncontroversial that, apart from particular
partnerships entered into for the purpose of a particular enterprise,
Roman and Roman - Dutch law also recognised universal partnerships.
Within
the latter category, a distinction was drawn between two kinds. The
first was the societas universorum bonorum - also referred
to as the
societas omnium bonorum by which the parties agree to put in common
all their property, present and future. The second
type consisted of
the societas universorum quae ex quaestu veniunt, where the parties
agree that all they may acquire during the
existence of the
partnership, from every kind of commercial
undertaking, shall be partnership property.”
[17]
I am of the view that the
partnership agreement alleged by the Defendant is a societos
universorum quae ex quaestu veniunt.
[18]
In the cases of JW v CW supra as
well as E: AL v E: EC supra the alleged universal partnerships were
classified as societas universorum
bonorum.
[19]
It seems to me that Mr Wagener’s
contention holds true in respect of a societas universorum bonorum
but not necessarily in
respect of a societas universorum quae ex
quaestu veniunt.
[20]
It was contended by Mr van Niekerk on
behalf of the Defendant that the Court in the case of JW v CW supra
did not hold as a general
proposition that the existence of an
Antenuptial Contract excludes the existence of a universal
partnership, but that the terms
of a particular Antenuptial Contract
may exclude a future partnership if the terms of the particular
partnership would contradict
the terms of the Antenuptial Contract.
[21]
It was further contended by Mr van Niekerk that in the case of
Ponelot v Schrepfer
2012 (1) SA 206
SC A, specific reference was made
to the judgment of Muhlmann v Muhlmann
1984
(3)
SA
102
A, where the Court found that a universal partnership existed
between parties who were married to each other out of community of
property.
[22]
Mention needs to be made of the
fact that in the case of Muh/mann v Muh/mann supra the universal
partnership was in respect of certain
commercial enterprises
(societas universorum quae ex quaestu veniunt).
[23]
It was further contended by Mr van Niekerk that whereas the
Antenuptial Contract of the parties excludes community of profit and
loss, it does not exclude the liberty of the parties to enter into a
joint undertaking for their joint profit.
[24]
It was further contended by Mr van Niekerk that the terms of
the Antenuptial Contract in its plain grammatical meaning simply
means
that there will not be a merger (confusion) of profit and loss
of the parties during the course of their marriage, or, in other
words, it excludes a
universorum bonorum.
[25]
It was lastly contended by Mr van
Niekerk that in the very nature of a partnership the joint profit is
divided between the partners
and each partner then retains his share
of the profit for his own account.
[26]
I agree with these contentions by Mr van
Niekerk
.
Legal principles:
[27]
In the case of
Pezzutto v Dreyer and Others supra
at
390 it was held that: “What is necessary to create a
partnership agreement is that the essentialia of a partnership should
be present. Our Courts have accepted Pothier’s formulation of
such essentialia as a correct statement of the law...
The
three essentials are (1) that each of the partners brings something
into the partnership, whether it be money, labour or skill;
(2) that
the business should be carried on for the joint benefit of the
parties; and (3) that the object should be to make a profit...
In
essence, therefore, a partnership is the carrying on of the business
(to which each of the partners contributes) in common for
the joint
benefit of the parties with a view to making a profit...”
[28]
In the case of
Fink v Fink and Another
1945 WLD 226
,
Mrs Fink in her claim in reconvention alleged that in or about the
year 1928 she and her husband (to whom she was married out of
community of property) commenced for their joint benefit a joint
venture or partnership whereby they sold milk on a small scale.
She
alleged that the parties had contributed money, property, labour,
services and skill to the joint venture or partnership and
had pooled
their joint efforts and resources, with the result that at the time
of the divorce it constituted a very substantial
milk producing
business known as Glenhazel Dairy. Mrs Fink alleged that the
business, its goodwill and all other assets and all
the proceeds and
profits therefrom were the outcome of the joint efforts of the
parties and their contributions to it.
The
parties’ Antenuptial Contract excluded community of property,
profit and loss.
The
Court found that Mrs Fink was entitled to a declaration that a
partnership existed between the parties in respect of the dairy
business.
Conclusion:
[29]
The question in
casu
is therefore whether the terms of
the alleged universal partnership agreement to share in the profit
generated by the “fish
farming business” is directly at
variance with the express term of the Antenuptial Contract, excluding
community of profit
and loss.
[30]
In considering same 1 take the following into account:
1.The
partnership agreement alleged by the Defendant had been concluded
more than two years after the date of the marriage.
2.The
agreement, as alleged, applied to a commercial enterprise and to
particular assets (
societas universorum quae ex quaestu veniunt
).
3.The
main purpose of the parties’ Antenuptial Contract is to
regulate their marriage regime.
4.The
partnership envisaged in the Counterclaim constitutes a “legal
entity” separate from the matrimonial property
regime
applicable to the parties.
5.The
net benefits derived from the partnership will be divided between the
parties and accrue to their separate estates.
6.The
parties accordingly are business partners like any other two
individual partners, each having his or her separate estate.
7.The
facts in this case accords with the facts in the Fink case where the
Court found that a universal partnership (
sosietas universorum
quae ex quaestu veniunt
) existed between the parties.
8.The
case of JW v CW supra is distinguishable from this case in that:
1.The
agreement alleged by the Defendant in that case had been concluded at
the time of the marriage or very shortly thereafter.
2.The
alleged universal partnership between the parties was in respect of
all the parties' movable and immovable assets, both then
existing
(including the assets of the parties as at the date of their
marriage) and future.
[31]
I am of the view that it is clear from the aforesaid that where
spouses who are married to each other out of community of property,
with the exclusion of community of property, profit and loss, carry
on a bona fide business and the essentialia to create a partnership
agreement are present, a partnership exist.
[32]
I accordingly hold that the Counterclaim discloses a cause of action,
and the exception is dismissed with costs.
Signed
at PRETORIA on this 5th day of March 2014.