SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: 8052/2019
(1) REPORTABLE: YES/NO
(2) OF IN TEREST TO THE JUDGES: YES/NO
(3) REVISED .
DATE: 13 FEBRUARY 2025
SIGN ATURE:
In the matter between :
R[...] D[...] M[...] PLAINTIFF
-and-
M[...] D[...] K[...] DEFENDANT
JUDGMENT
BRESLER AJ:
Introduction:
[1] The matter came before court as a trial. The Plaintiff claims judgment against
the Defendant in the following terms:
1.1 A declarator that a partnership for gain was created between the
parties.
1.2 A declarator that the partnership was terminated during or about
April 2019.
1.3 Appointment of a liquidator to liquidate the assets and divide the
proceeds thereof bet ween the parties.
[2] The Plaintiff pleaded that during or about 2014, the Plaintiff and the Defendant
entered into a life partnership agreement in terms whereof the parties will live
together for as long as the partnership lasted.
[3] The material exp ress, alternatively implied, further alternatively tacit terms of
the life partnership agreement between the parties were that:
3.1 The parties will live together under one roof as life partners;
3.2 The parties will care for, maintain one another, and accord each other
societal comforts and benefits in a relationship similar to that of husband and
wife.
3.3 The parties will contribute their resources, assets and labour towards
the accumulation, upkeep and maintenance of the joint and shared estate.
3.4 The parties would create a universal partnership for gain between
themselves and for their benefit.
[4] The Plaintiff further pleaded that the parties commenced their co -habitation as
life partners since 2014 when the Plaintiff moved into the Defend ant’s home.
[5] The Plaintiff contributed inter alia a portion of his pension pay -out in the
amount of R416,388.77. The Defendant, in return, contributed inter alia the
immovable property situated at 2 […] Zone 3 Seshego. During the subsistence of the
partnership, the parties accumulated further movable assets as well.
[6] The Plaintiff requires an equal division of these assets.
[7] The Defendant pleads that the extension and improvements to the immovable
property was a gift, and not a contribution in terms of the alleged partnership
agreement.
[8] The existence of the partnership agreement is pertinently denied. The
Defendant furthermore denies that she ever contributed the immovable property to
the alleged partnership. It is also denied that any life partnershi p agreement was
concluded between the parties.
Issues that require determination:
[9] Having regard to the position as postulated by the Pleadings, this Court is
therefore called upon to determine if the requirements for the existence of a
partnership has been met, and if so, how it should be liquidated and dissolved.
[10] The Plaintiff explicitly stated in its Heads of Argument that a ‘universal
partnership of all property’ or ‘ societas universorum bonorum ’ was created.
Considering this submission, this court is therefore obliged to limit its enquiry within
the accepted parameters of this specific type of partnership.
The Plaintiff’s testimony:
[11] The Plaintiff testified that he met the Defendant during 2014. At that stage, he
was staying with his sister, and the Defendant had her own place. The parties then
resolved that the Plaintiff would move in with the Defendant.
[12] At some point, the Defendant indicated that the house is too small for them as
her daughter was also residing there. They then decided to extend the Defendant’s
immovable property. The Plaintiff, the Defendant and her daughter shared the
household e xpenses by means of an equal contribution of R300.00 each per month.
[13] According to the Plaintiff, he commenced with lobola discussions and in the
eyes of the Plaintiff and family members, the Defendant was his intended bride.
Evidence was also led pe rtaining to the purchase of rings that the Defendant chose
in lieu of the anticipated marriage. This evidence was later rebutted by the Defendant
who claims that she never chose the rings, nor did she receive them at any stage.
[14] The Plaintiff testifi ed that he never indicated that the monies contributed
towards the improvement of the immovable property constituted a gift or a donation.
At all material times it was his contribution to the partnership.
[15] Of particular importance is the fact that th e Plaintiff did not, at any stage,
testify as to his own assets or that of the Defendant that the parties owned prior to
the conclusion of the partnership agreement, which assets would form part of the
alleged partnership estate. His testimony was largely concerned with the
considerable amount contributed towards the improvement and extension of the
Defendant’s immovable property.
[16] During cross examination, the Plaintiff was extensively questioned on the
lobola arrangements (or rather the lack thereof ), and the Plaintiff’s intention to marry
the Defendant. Numerous questions were also asked pertaining to the agreed
monthly contribution paid by the Plaintiff, the Defendant and her daughter. Nothing
turns on the concessions made by the Plaintiff in so far as the purpose of the
payments are concerned or the fact that the funds were paid to the Defendant’s
account for the purpose of purchasing building material. Same do not prove or
disprove the existence of a partnership.
The Defendant’s testimony:
[17] The Defendant confirmed that she was in a relationship with the Plaintiff. She
furthermore confirmed that, when the parties met, he was still staying with his sister.
At that stage she was employed, and he was searching for employment.
[18] The Defe ndant denied that the Plaintiff stayed with her uninterruptedly for the
period 2014 to 2019. According to her testimony, he sometimes left for extended
periods.
[19] As to the specific amount of R10,000.00 that was paid by the Plaintiff to the
Defendant, she testified that he gave her the money and told her to ‘keep it’. It was
therefore not lobola as submitted by the Plaintiff.
[20] As to his contribution towar ds the extension of the Defendant’s property, she
was adamant that there was no explicit discussion, or tacit intention on her behalf, to
create a partnership of any form. Moreover, there was never any discussion that he
would acquire any right whatsoever towards her property. The only discussion that
ensued between the parties related to the fact that the house was too small to
accommodate them all and as such, the Plaintiff offered to use a portion of his
pension fund to extend the property. No mention was made of creating a partnership
estate.
[21] Of particular importance is the testimony that the Defendant was able to take
care of herself, and the fact that she indeed did so. Save for the monthly contribution
of R300.00 the Plaintiff did not contrib ute financially to her welfare. There was no
testimony of a shared endeavour to create a mutually beneficial situation. As such,
she remained adamant that no partnership agreement was concluded either
expressly or by means of the conduct of the parties.
[22] In cross examination, it was put to the Defendant that the Plaintiff’s intention
was not a mere ‘boyfriend – girlfriend’ relationship. The Defendant however
remained adamant that people who are in a relationship will act in a certain manner.
This does not presuppose that a partnership was intended. It is clearly common
cause that the parties were in a relationship and acted accordingly.
[23] In re -examination she again reiterated that the contribution towards the
renovation and extension of her prope rty was not part and parcel of performance in
terms of a partnership agreement but merely intended as a gift to make the joint
occupation of the property more comfortable. The contribution was not demanded
but tendered voluntarily by the Plaintiff.
[24] From the aforesaid, it is indisputable that the parties were engaged for some
time in a romantic relationship. During the course of the relationship certain
payments were made by the Plaintiff to the Defendant, including but not limited to the
amounts ut ilised to improve and extend the property. It is furthermore common
cause that the relationship broke down irretrievably, resulting in the Plaintiff vacating
the Defendant’s immovable property.
[25] Neither the Plaintiff nor the Defendant called any furth er witnesses. After
several endeavours to arrange a mutually suitable date for oral closing argument, it
became apparent that the most convenient manner in which to dispose of the matter
is to direct the parties to deliver written closing arguments in the form of Heads of
Argument. A written directive was accordingly sent to the parties on the 23rd of
August 2024. This Court is indebted to both Counsels for promptly responding and
complying fully with the directive by delivering the said Heads of Argument f or
consideration by the Court.
Applicable law:
[26] A partnership is often defined as a contract between two or more parties in
term of which each contributes or undertakes to contribute towards an enterprise to
be carried on jointly by them with the o bject of making a profit and of sharing it
between them.1
1 Sharrock R, Business Transaction Law, 2017, Juta at page 516
[27] The essentialia of a partnership agreement has been authoritatively dealt with
in numerous cases. In the well -known case of Joubert v Tarry & Co2 referred to by
the Plain tiff, the requirements for the existence of a partnership were recorded to be
the following:
55.1 Each one of the partners must bring something into the partnership, or
binds himself to bring something into it, whether it be money, or his labour or
skill.
55.2 The business should be carried on for the joint benefit of both parties;
55.3 The object of the business should be to make profit; and
55.4 The contract between the parties should be a legitimate contract. (It
was subsequently held that this is not a requirement peculiar to a partnership
but rather applicable to all types of contracts).
[28] These requirements originate from the formulation by Pothier3 that has been
accepted by the South African courts4 as correct.
[29] Brand J, in the cas e of Butters v Mncora5 held as follows at [14]:
‘[14] 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 f irst 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
2 2015 TPD 277
3 RJ Pothier, A Treatise on the Law of Partnership (Tudor’sTranslation 1.3.8)
4 See for instance Bester v Van Niekerk 1960 (2) SA 779 (A) at 783H – 784A and
Pezutto v Dreyer 1992 (3) SA 379 (A) at 390A - C
5 2012 (4) SA 1 (SCA)
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.’
(own underlining)
[30] Both types of partnerships can be constituted tacitly, th at is, by mere consent
and circumstance. Neither type requires an express agreement. Like any other
contract, they can also come into existence by tacit agreement derived from the
conduct of the parties. 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 was reached.6
[31] In this regard, the Court is obliged to look at substance, rather than form, to
determine what the intention of the parties are. Where more than one inference can
be drawn from the conduct of the parties, the test for when a tacit universal
partnership can be held to exists is whether it is more probable than not that a tacit
agreement was reached.7
[32] In Muhlman v Muhlman8 the following was stated at 635:
‘Before tacit agreement can be held to have been reached in any case it must
be clear that the conduct relied upon is not only consistent with the making of
the contract alleged but is consistent with no other reasonable interpretation.
(Festus v W orcester Municipality 1945 CPD 186 at 193; Wille and Millin
Mercantile Law of South Africa C 17th ed at 16; and cf Isaacs v Isaacs
1949 (1) SA 952 (C) at 960 (bottom of page)). In Wessels Law of Contract in
South Africa 2nd ed vol 1 para 266 the le arned authors state that before a
court can find that there has been a tacit contract, it must be satisfied that the
person whom it is proposed to fix with a tacit contract must be fully aware of
6 Henning JJ, Perspectives on the Law of Partnership in South Africa , Juta at
page 88
7 Butters v Mncora 2012 (4) SA 1 (SCA) at [18] – [19]
8 1981 (4 ) SA 632 (W)
all the circumstances connected with the transaction, the ac t must be
unequivocal and the tacit contract must not extend to more than what the
parties contemplated.’
[33] As far as the ambit of the two types of partnership referred to herein before is
concerned, the universal partnership proper in principle compr ises all the present
and future property of the partners. Thus, all the assets which the partners possess
at the inception of the partnership as well as all the assets they obtain during the
duration of the partnership from whatever source. The general partnership comprises
only the profits derived from all the commercial activities of the partners during the
duration of the partnership.9
[34] In casu the Plaintiff alleged an oral agreement with express, alternatively
implied, further alternatively tacit terms comprising that of a partnership. The Plaintiff
explicitly argued that a societas universorum bonorum (universal partnership proper)
was concluded.
[35] In a societas u niversorum bonorum the parties agree to contribute all their
property and possessions which they own at the commencement of the partnership
as well as property and possessions they may acquire in future from whatever
source, irrespective of whether such pr operty is acquired from commercial
undertakings or otherwise.10
[36] As stated herein before, no testimony was led as to the respective assets of
the parties prior to the commencement of the alleged partnership, or the assets that
were acquired thereafter in their individual names. This is a critical element of a
societas universorum bonorum.
[37] The Plaintiff pleaded that the agreement was oral but that the terms thereof
was express, alternatively implied or further alternatively tacit. The test applied in
cases where a tacit agreement potentially came into effect between the parties, has
9 Henning JJ, Perspectives on the Law of Partnership in South Africa , Juta at
page 89
10 Annabhay v Ramlall 1960 (3) SA 802 (D) 805
been clearly stated herein before: there must be no other reasonable inference from
the conduct of the parties .
[38] The P laintiff’s testimony made no reference to the profit essentiale , Pothier’s
third requirement stated herein before. This requirement will be satisfied if the
Plaintiff was able to show that their relationship was an all -embracing venture, which
included bot h their home lives and the business lives and that aimed at a profit to be
shared between the parties. The Plaintiff’s testimony was largely limited to his
contributions. This is but one element of a partnership.
[39] As to the Defendant’s contribution t o the profit essentiale , the Plaintiff’s
testimony was effectively limited to the fact that she contributed the immovable
property and she paid the agreed R300,00 per month. No testimony was led at all
that she explicitly shared his view that this is a par tnership of all assets . As stated
before, no testimony was led as to the assets in their separate estates that would
automatically form part of the assets of the joint estate, nor was any testimony lead
regarding the joint assets accumulated in either of t he parties’ personal names
subsequent to the formation of the alleged partnership. The Court therefore cannot
see, from the testimony as to the conduct of the parties, that there was an endeavour
to conduct the ‘business for the joint benefit of the partie s’ and with the aim of
‘making profit’ as contemplated by the requirements stated by Pothier.
[40] in Mühlmann v Mühlmann11 the court pointed out that ‘unless a wife has
rendered services manifestly surpassing those ordinarily expected of a wife in her
situation, a court will not easily be persuaded to infer a tacit agreement of
partnership between the spouses’. The same can be said of the conduct of the
parties in casu. This Cout is not convinced that the conduct shows that the only
reasonable inference is that of a partnership.
[41] In Ponelat v Schrepfer12 the Supreme Court of Appeal stated the following:
11 1984 (3) SA 192 (A)
12 2012 (1) SA 206 (SCA) at [20]
‘A universal partnership in which the 'parties agree to put in common all their
property, both present and future', is known as universum b onorum (see
Isaacs v Isaacs 1949 (1) SA 952 (C) at 955, citing Pothier's translation), which
in Sepheri v Scanlan 2008 (1) SA 322 (C) at 338C – D was described as
effectively a community of property. In Mühlmann v Mühlmann 1984 (3) SA
102 (A) at 124C – D the approach as to whether a tacit agreement can be
held to have been concluded was said to be, 'whether it was more probable
than not that a tacit agreement had been reached'. It was also stated that a
court must be careful to ensure that there is an animu s contrahendi and that
the conduct from which a contract is sought to be inferred is not simply that
which reflects what is ordinarily to be expected of a wife in a given situation.
See Mühlmann v Mühlmann, supra, at 123H – I; Muhlmann v Muhlmann 1981
(4) SA 632 (W) at 634F – H.’
[42] This Court is not convinced that the required animus contrahendi appears
from the conduct of the parties.
[43] It must be borne in mind that a societas universorum bonorum does not
equate to a marriage in community of property.13 The normal principl es pertaining to
contributions of spouses in a marriage in community of property will therefore not
apply to determining if a societas universorum bonorum came into existence. The
mere fact that parties co -habitate does not entitle them to a proportionate share of
the other parties’ estate.
[44] Having a holistic view of the oral evidence and taking into consideration the
documentation presented during the oral evidence, it is evident that the relationship
between the Plaintiff and the Defendant is suscept ible to a reasonable alternative
interpretation, being that the parties were merely co -habitating and sharing expenses.
This Court is not persuaded that what was contributed by the Plaintiff, amounts to
partnership contributions. In this regard, the Court agrees with the submission made
13 See for instance Butters v Mncora 2012 (4) SA 1 (SCA) where this distinction was
specifically clarified.
by the Defendant’s Counsel that one should be careful to conceive every gift or
donation as the basis of a societas universorum bonorum.
[45] The onus was on the Plaintiff to proof its case, and the Defendant does not
carry any onus to disprove. The Plaintiff had to proof its case on a balance of
probability. The Plaintiff failed to establish that a societas universorum bonorum
came into existence in that there was no evidence to the effect that the parties
pooled all their assets. There was furthermore insufficient evidence that the alleged
pooling of the assets was with the purpose of making a profit.
[46] That the conduct of the parties is susceptible to an alternative interpretation
being actions that naturally follows from co -habitation.
[47] The Plaintiff’s case therefore stands to be dismissed. There is no reason why
the costs should not follow the outcome of the proceedings. Having regard to inter
alia the nature of the proceedings, the amount of preparation required, the volume of
the documents presented to court and the importance of the proceedings to the
parties, costs to counsel are warranted on Scale B.
Order:
[48] In the result the following order is made:
48.1 The Plaintiff’s claim is dismissed with costs on party and party
scale including costs to counsel on Scale B.
M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE PLAINTIFF : Adv. S Makaosha
INSTRUCTED BY : Makgoba Kgomo & Makgaleng Inc
Polokwane
mkinc@telkomsa.net
FOR THE DEFENDANT : Mr. SM Lebepe
INSTRUCTED BY : Tebogo Dikhuba Attorneys Inc Polokwane
office@lebepelegal.co.za
DATE JUDGEMENT RESERVED : 23 August 2024
DATE OF JUDGMENT : 19 February 2025