SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 1287/2022
In the matter between:
A[...] T[...] E[...] Plaintiff
and
D[...] T[...] Defendant
Coram: Joubert AJ
Oral evidence: 29 May 2025 and 2 June 2025
Oral argument: 8 August 2025
Further written submissions delivered 8 September 2025
Judgment delivered electronically: 26 September 2025
JUDGMENT
JOUBERT AJ:
INTRODUCTION
1. The parties lived together as romantic partners in the defendant’s house from
about February 2011 until 23 April 2022 when the plaintiff moved out of the
house.
2. In his summons, the plaintiff claims the following:
2.1 An order declaring that a partnership existed between the parties in equal
shares in respect of the assets of the universal partnership.
2.2 An order dissolving the partnership as from 23 April 2022.
2.3 An order appointing a liquidator, alternatively a receiver with authority to:
2.3.1 realise the assets of the partnership;
2.3.2 pay the liabilities of the partnership;
2.3.3 prepare a final account and reconciliation of the partnership assets
and liabilities as above;
2.3.4 make payments to the plaintiff of 50% of the profits derived from the
aforesaid process as set out in the aforesaid account and
reconciliation.
2.4 Payment in the amount of R230 000.
2.5 Interest ex tempore morae on the aforesaid sum from date of summons to
date of final payment.
2.6 Costs of suit.
2.7 Further and/or alternative relief.
3. The matter was set down for hearing in the Fourth Division of this Court on
Thursday 29 May 2025. The parties however agreed beforehand that the merits
and quantum be separated and that the merits be dealt with first, which
agreement was recorded in a Joint Practice Note. In effect, this includes the relief
set out in paragraphs 2.1 to 2.3 above. More will be said about the plaintiff’s claim
for “equal shares in respect of the assets” and “50% of the profits” later herein.
4. After the evidence of the parties was heard on 29 May 2025 and 2 June 2025, 1
the matter was postponed by agreement between the parties in order for a
transcript of the evidence to be obtained, heads of argument to be filed , and
argument to be heard.
5. After having heard argument on 8 August 2025 , I directed the parties to submit
written notes on the following:
5.1 In the event that the Court declares that a universal partnership existed
between the parties:
1 The defendant applied for absolution from the instance at the end of the plaintiff’s case, which was dismissed.
5.1.1 Does the Court have the power to determine the respective shares
in such un iversal partnership, or is the Court bound to decide
whether or not the plaintiff has a 50% share in such partnership as
claimed in the plaintiff’s Particulars of Claim, and nothing else ?
5.1.2 If the Court does have the power to declare a share percentage
other than 50% each, what should the share percentages be and
on what grounds / considerations should such determination be
made ?
5.1.3 Is the Court requested, and does it have the power, to declar e
which assets form part of such universal partnership, and if so,
should the value of the defendant’s house situated at [...] C[...]
Close, Milnerton be included therein ?
THE RELEVANT LEGAL PRINCIPLES
6. For the test and factors to be considered in determining whether a universal
partnership existed between two parties, one need not look further than t he
judgments of the Supreme Court of Appeal in Ponelat v Schrepfer 2012 (1) SA
206 (SCA) (“Ponelat”) and Butters v Mncora 2012 (4) SA 1 (SCA) (“Butters”).
7. In Ponelat it was inter alia explained that:2
2 At paras 19 – 20, quoting with approval a passage from the judgment of the trial court, in turn quoting from
Pezzuto v Dreyer 1992 (3) SA 379 (A).
7.1 The essentials of a partnership in general as formulated by the French
jurist RJ Pothier3 namely that (1) each of the partners must bring
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, apply equally to a universal
partnership.
7.2 A universal partnership in which the parties agree to put in common all
their property, both present and future, known as a universum bonorum,
has been described as “effectively a community of property”.4
7.3 The approach as to whether a tacit agreement can be held to have been
concluded was whether it was more probable than not that such a tacit
agreement has been reached.
7.4 The Court must also “ be careful to ensure that there is an animus
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 spouse in a given situation.
7.5 The universal partnership e xists if the necessary requirements for
existence are met, regardless of whether the parties are married, engaged
or cohabiting.
3 Traité du Contrat de Societé (Treatise on the Contract of Partnership).
4 In Sepheri v Scanlan 2008 (1) SA 322 (C) at 338C
8. It is worth noting that, in the passage from Pezzuto referred to in footnote 2
above, it was inter alia stated that partnership could be tacit or implied from the
facts, “ …provided they admit of no other conclusion than that the parties
intended to create a partnership… ”. However, the Supreme Court of Appeal in
Ponelat confirmed the less onerous “probability test” referred to in paragraph 7.3
above, following its own judgment in the case of Mühlmann v Mühlmann 1984 (3)
SA 102 (A). In Mühlmann, the Court expressly rejected the “ no other reasonable
interpretation”-test.5
9. In Butters, the Court inter alia held as follows:
9.1 The general rule of our law is that cohabitation does not give rise to
special legal consequences and the supportive and protective measures
established by family law are generally not available to those who remain
unmarried, despite their cohabitation even for a long period;
9.2 To establish a universal partnership the plaintiff had to establish that she
and the defendant were not only living together as husband and wife, but
that they were partners, which required proof of the three essential
elements as formulated by Pothier;6
9.3 In Roman -Dutch law a distinction was drawn between a societas
universorum bonorum by which the partes agree to put in common all their
property, present and future, and a societas universorum quae ex quaestu
5 At 124C
6 At para 11
veniunt where they agree that all they may acquire during the existence of
the partnership shall be partnership property.7
9.4 Crucially, for purposes of this case, t he contention that the partnership
must consist of some commercial undertaking was rejected after a careful
analysis of the Roman and Roman-Dutch law of partnership.8
9.5 Contra the statement in Ponelat referred to in paragraph 7.2 above, the
Court held that “…A universal partnership is not the same as a marriage in
community of property”.9 I return to this question later in this judgment.
9.6 In summary, the Court formulated the following principles:10
9.6.1 Universal partnerships of all property which extend beyond
commercial undertakings were part of Roman -Dutch law and still
form part of our law;
9.6.2 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.
7 See also Heaton et Kruger: South African Family Law, LexisNexis 5th Ed., p 305; Sepheri v Scanlan (supra) at 338 A-
C; Booysen v Stander 2018 (6) SA 528 (WCC) at para [67]
8 At paras 12 – 15
9 At para 30
10 At para 18
9.6.3 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.
9.6.4 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 be exist is whether it is more prob able than not that a tacit
agreement had been reached.11
10. Based on the aforementioned principles, it was held in Butters that a tacit
universal partnership had been established by the plaintiff in that case in
circumstances where her contribution was that “ she spent all her time, effort and
energy in promoting the interests of both parties in their communal enterprise by
maintaining the common home and raising their children ” and “her earnings were
far less than the defendant’s and he r financial contribution was therefore quite
modest when compared to his”.
11. As an aside, I consider t he phrase “communal enterprise” in the passage quoted
above to be helpful and appropriate to employ in considering whether a
partnership came into existence, rather than the word “partnership” which
presupposes the answer to the enquiry.
12. It hardly bears mentioning that in our law same-sex partners, such as the parties
in this case, are constitutionally entitled to the same legal recognition as
11 See also Christie’s The Law of Contract in South Africa,Vol 1, 8th Ed, pp 110 – 111
heterosexual partners12 and no distinction is to be made between heterosexual
relationships and same-sex relationships in the application of the legal principles
relating to universal partnerships.
13. Whether the plaintiff in this case succeeded in establishing a tacit universal
partnership on the evidence before the Court must now be considered in the light
of the aforementioned legal principles.
THE RELEVANT EVIDENCE
14. Although they had met earlier, the plaintiff and defendant started dating when the
plaintiff was 25 and the defendant 41 years old. The plaintiff was struggling
financially and was on the brink of being evicted from his flat in Sea Point, Cape
Town. After three months of dating , the defendant invited the plaintiff to move in
with him, in the defendant’s house at [...] C[...] Close, Milnerton (“ the house” or
“the property”).
15. The plaintiff, by his own admission, did not earn a particularly substantial income.
He had worked in the trav el industry with Flight Centre but later got involved in
real estate, managing rentals with Cape 24 Properties. At the time that he moved
in the with the defendant he was earning R6000 to R7000 per month whereas his
rental alone was R6000 a month. By the time he moved out of the house in 2022
he was earning around R20 000 – R25 000 per month.
12 A collection of relevant case law in this regard is conveniently cited in Booysen v Stander (supra) at para [45]
16. The defendant was, and still is, employed as Airport Service Manager for
Emirates Airline. The only oral evidence of the defendant’s income was provided
by the plaintiff who testified that the defendant earned at least R50 000 per month
more than him, which evidence was not placed in dispute by the defendant in any
manner. However, in the defendant’s counsel’s further written submissions it was
stated that his average net salary over the period from 2016 to 2022 was
R44 175 per month , with reference to a document in the agreed trial bundle
which contains the defendant’s salary details over the relevant years.
17. Although the aforementio ned document was not identified and dealt with in the
defendant’s evidence, since it renders his position in relation to the comparative
contributions of the parties less favourable to him than the plaintiff’s evidence
referred to above, I will accept his counsel’s submission in that regard.
18. No evidence was given of the plaintiff’s average monthly income . O n his own
evidence, it fluctuated substantially. I return to this issue, and the comparative
contributions of the parties to the household finances, below.
19. Approximately four months after the plaintiff moved in with the defendant, the
defendant’s parents also moved into the house. They had been living there
before but were away visiting in Johannesburg at the time that the plaintiff moved
in. Approximately a year later, the defendant’s sister and her disabled son also
moved into the house. Later, during around 2020, the plaintiff’s other sister and
her grandson also moved into the house, replacing the first sibling and her son.
20. During 2018, while on holiday in Phuket , the Plaintiff asked the Defendant to
marry him to which the Defendant agreed . The Defendant testified that although
he is generally not in favour of gay marriages, the proposal was unexpected and
he was caught up in the moment and mood of the happy time that they were
having. No date for a wedding was set and they simply remained engaged until
the relationship ended.
21. The main, or at least final, cause for the breakdown in the relationship between
the parties was admitted in fidelity on the part of the plaintiff. However, neither of
the parties contended that the reasons for the termination of their relationship
has relevance to the issues at hand and I accordingly say no more about that.
22. During the currency of the relationship between the parties, the financial affairs of
the household were managed as follows:
22.1 The defendant had two accounts, being an Absa account number 7 [...]
(“the Absa account ”) and an FNB Premium/Platinum13 account number 6
[...] (“the FNB Premium account ”). The defendant had an FNB account
number 6 [...]. The Absa account was in effect a joint account from which
all the household expenses were paid, including the bond. The plaintiff
paid most of his salary into the Absa account and the defendant was in
complete control of it and took care of the household finances. The plaintiff
testified that he did not really know anything about the household finances
and that he “felt safe and secure like that”.
13 “Premium” and “platinum” were used interchangeably in evidence.
22.2 The defendant’s FNB Premium account was made available to the plaintiff
for use as a credit card. He was provided with a physical bank card
bearing his name and also had signing powers in respect of that account.
The reason for this was that it provided more benefits than his own bank
account such as lower interest rates, airport lounge access, etc. When the
FNB account did not have sufficient funds, the plaintiff would request more
funds from the defendant who would then always make sure that there
was enough money in it for the plaintiff’s use.
22.3 Over the period from May 2012 to April 2022, the total funds transferred
from the FNB account into the Absa account amounted to R1 009.330,
which represents the total of the plaintiff’s contribution to the joint account
over that period. This amounts to approximately R7600 per month on
average over the 11 year period. To what extent that would have covered
the plaintiff’s share of the ho usehold expense was not dealt with in
evidence.
22.4 The defendant’s parents were reliant on SASSA grants which they also
contributed to the household finances. The amount of their contributions
was not dealt with in the evidence.
23. The defendant urged upon the Court that, viewed holistically, the plaintiff
ultimately caused a substantial di minution of his (the defendant’s) estate. The
following facts are relevant in this regard:
23.1 The defendant purchased the (2 -bedroomed) house in 2008 and had an
extra flatlet added for his parents. In 2011, at the time that the plaintiff
moved in with him, his financial position was stable in that he had his own
house, own car and two or three credit loans. The bond on the house was
R1.25 million.
23.2 By contrast, according to the defendant, when the relationship ended in
2022, he was struggling financially. In this regard he referred to an
Experian Credit Report dated 29 June 2023 in which various credit
account balances are recorded , which were summarize d in a schedule
handed in and marked Exhibit C , which shows a total balance in the
amount of R718 539.
23.3 The defendant has settled the aforementioned debts by increasing the
mortgage bond on the house from R1.25 million to approximately R1.9
million. The bond has now been reduced to approximately R1.8 million.
24. When the plaintiff moved in with the defendant he brought with him the furniture
and appliances that he had in his flat, but the parties subsequently agreed on the
items that he could take with him. During their relationship, the plaintiff was given
the use of an Audi A4 convertible motor vehicle which was acquired by the sale
of the plaintiff’s father’s Corolla motor vehicle and an Opel Astra motor vehicle.
The Audi A4 was purchased for R100 000 but later sold for R35 000, whereafter
the plaintiff was given the use of a Renault Sandero motor vehi cle, which had
actually been obtained for the defendant’s sister’s disabled son through the
latter’s trust.
25. Lastly, as regards financial affairs, it should be mentioned that the parties
concluded a lease agreement in terms of which the plaintiff would notionally pay
rental to the defendant. It was however clearly not intended to be implemented or
enforced but rather to submit to the bank as proof of additional income to the
defendant for purposes of obtaining an increase in the mortgage bond.
26. Further relevant aspects of the evidence will be appear from the discussion of the
merits of the plaintiff’s claim below.
DID A UNIVERSAL PARTNERSHIP COME INTO EXISTENCE?
27. The enquiry must commence with a consideration of the three essential
requirements for a part nership as formulated by Pothier followed by a
consideration as to whether, on a conspectus of all of the relevant evidence, it is
more probable than not that a tacit agreement, entailing the requisite animus
contrahendi, had been reached.
Each of the partners must bring something into the partnership, whether it
be money, labour or skill
28. The plaintiff’s case in respect of his contributions to the communal enterprise may
be summarized as follows:
28.1 He essentially paid over his entire income, or the bulk of it, for the
defendant to utilise as he saw fit.
28.2 He was very involved in planning and executing improvements to the
house. Given his background in property, he had good ideas in this
regard, which the defendant candidly admitted.
28.3 Albeit not to the extent of the plaintiff in Butters (he did not sacrifice his
career and there were no children that required raising and looking after),
he contributed to “ looking after the household ”, assisting with errands,
occasionally providing transport to the defendant’s parents (although they
could also drive themselves, etc). Since he did not have a full -time job, he
was the one that could attend to household issues or emergencies that
inevitably arise. In the plaintiff’s words, he “ gave his life to the defendant
and the partnership and brought joy to the household”.
28.4 He also on occasion played a significant role in hosting staff functions for
the defendant.
29. The defendant did not dispute the plaintiff’s case in that regard. If anything, he
candidly acknowledged the contributions to the relationship that the plaintiff relies
upon as appears, for example, from the following evidence given by him in his
evidence in chief:
“MR BOTHA: What skills do you think you brought to the relationship, if any?
MR T[...]: I think his ideas ... [intervenes]
MR BOTHA: In respect of the renovations?
MR T[...]: Ja.
MR BOTHA: Ok ... [intervenes]
MR T[...]: He mentioned yesterday like I do not know if I misunderstood him, but he said
he brought joy, like I said five years, it was absolute beautiful but the past six years was
an absolute disaster.”
30. Under cross-examination, the defendant also acknowledged that the defendant’s
salary was paid into his (the defendant’s) account for the benefit of everybody in
the household.
31. The overall impression to be gained from the aforegoing is that the plaintiff’s role
in the relationship was akin to that of a spouse in a marital relationship who earns
less than the other spouse but contributes what he or she is able to by way of
finances in addition to intangible and non-pecuniary contributions such as
affection, support and companionship.
32. In my view the plaintiff’s contributions to the relationship and “communal
enterprise” qualified as contributions envisaged in the first requirement for a
partnership, in the context of a universal partnership.
The partnership must be carried on for the joint benefit of the parties
33. The plaintiff denied the defendant’s case, as pleaded, that their relationship was
no more than a “romantic entanglement”. In doing so, he inter alia testified as
follows:
“I would say that 13 years of constant work together at a common goal of
success, of being there for his family, being there for one another, pushing,
working hard, motivating one another, being through hard times, getting through
them.”
34. As regards what he meant by “common goal”, he testified that
“For success, whether it be if we eventually have to sell our house one day and
get equity within the property we made together , because we renovated. If it
were to be one day we decide that the family is no longer a burden and we retire
to Spain. I do not know, we just wanted to better our lives together and work
together to make it happen and we were good at it.”
35. That evidence was not directly contested or refuted. T he defendant was asked
during his evidence in chief whether, if he had been asked at the beginning of the
relationship to join forces with the defendant and enter into a commercial
partnership with him, romantic relationship aside, he would have agreed to such
an endeavour. H is response was that he would not because hi s priority was his
family. However, as I have pointed out, the defendant’s approach that a
commercial partnership had to be established was incorrect.
36. During cross-examination, the defendant agreed that their relationship had all the
characteristics of a marriage such as living under one roof, sharing a bed,
combining their salaries, etc and conceded that he was happy and comfortable to
receive the benefits which are associated with a marriage.
37. I am of the view that the evidence also establishes the second requirement,
namely that the communal enterprise was carried on for the joint benefit of the
parties.
The object of the partnership must be to make a profit
38. Again, “profit” in this sense does not necessarily refer to commercial profit, and in
my view the “common goal of success ” relied upon by the plaintiff in the passage
from his evidence quote d in paragraphs 3 3 and 3 4 above satisfies this
requirement.
39. Moreover, the defendant conceded that the plaintiff’s home improvement
knowledge and skills were valuable and did not contest the plaintiff’s evidence
that the improvements that were made, which were largely initiated and driven by
the plaintiff, did not constitute an overcapitalization of the property, given the
desirable area in which it is located.
40. Evidence was not given of the current market value of the property but I am
prepared to assume that it would at the very least have kept up with normal
increases in property values in the greater Cape Town area. As quoted in
paragraph 34 above, the plaintiff did suggest that the equity in the property would
be increased by the renovations , which was not contested b y the defendant. To
be clear, I make no estimation of what such increase might have been.
Did the applicant show the requisite animus contrahendi?
41. In the context of tacit agreement, the conclusion that the parties intended to
contract with each other “ …has to be reached by inference as to their intentions
properly drawn from the proved facts”.14
14 Christie’s The law of Contract (supra) at p 110
42. As has been mentioned above, earlier conflicting formulations for the test for
establishing this , have been settled in favour of the “more probable than not” -
formulation.
43. In my view, the evidence that I refer to above does give rise to an inference that
the parties intended their relationship to be much more than just a “romantic
entanglement”, as the defendant would have it. N ot only did he conce de that the
relationship had all the characteristics of a marital relationship, but the duration
thereof alone in my view placed it beyond a mere romantic relationship , even if
the mere fact of cohabitation as romantic partners does no t in and of itself place
their relationship on a much deeper level than that.
44. To my mind, the fact that the parties were engaged for four years and right up
until the relationship terminated, places the issue beyond doubt. To become
engaged is to intend to get married, with all the mutual support and common goal
of achieving success that normally characterizes a marital relationship. Even
though the parties were not yet actually married, they for all intent and purposes
already lived together like a married couple, for eleven years.15
45. Taking all of the above into account, I find that a universal partnership did come
into existence between the parties from the date that the plaintiff moved into the
defendant’s house during February 2011 until he moved out on 23 April 2022. It
follows that an order dissolving the partnership as from the latter date must be
granted.
15 In Allner v Werner [2020] JOL 46691 (ECG) , a cohabitation arrangement between romantic partners was held to
have progressed to a “ completely different level ” i.e. a universal partnership, when they “ resumed cohabitation in
all earnesty (sic) and for all intent and purposes were living together as a family unit” (at para 11).
The consequences of the dissolution of the universal partnership
46. The question as to what further relief ought to be granted must be answered with
reference to the submissions made by the parties in response to the questions
posed to them as set out in paragraph 5 above.
47. The parties are ad idem that the Court is called upon to declare such percentage
share of the universal partnership as it considers to be appropriate and in
accordance with each party’s contribution.
48. The plaintiff’s counsel, in his supplementary note, pointed ou t that in Butters, the
Supreme Court of Appeal did not interfere with the share percentage awarded by
the trial court. 16 In th e court a quo , Chetty J inter alia pointed out that the
apportionment “… though arbitrary, is one with an equitable outcome ” and
referred with approval to a judgment of the Botswana Court of Appeal in Mogorisi
v Mogorisi,17 in which it was inter alia held that “ We have to find a way of fairly
weighing and allowing for contributions of all the interested parties ”.18 It was
reiterated that the contributions to which a financial value could not be assigned
had to be taken into account, as well as the contribution of the respondent “to the
growth of the estate and the universal partnership… ” and that the Court also had
to give “full weight to the fact that the appellant was already the owner of some
property before 1966”. The court a quo in Butters apportioned a share of 30% of
16 Mncora v Butters 2010 ZAECPEHC (72) 7 December 2010
17 7 (CAPP04105) [2005] BWCA 18 (30 January 2008)
18 See also Heaton et Kruger: South African Family Law (supra) at p 307
the universal partnership to the net asset value of the defendant as at the date of
the dissolution of the partnership.
49. Taking a broad view, it can be said that the parties in effect contributed financially
to the household what they earned. It is not possible to determine what the
plaintiff’s average income over the period of eleven years amounted to. However,
at best for him , I shall assume the average of his income to be between the
lowest figure of R6000 per month referred to as his income at the beginning of
the relationship and R25 000 as the maximum at the end of the relationship,
which amounts to approximately R15 000. C ompared to the average of the
defendant’s income in the amount of approximately R45 000 000, that calculates
to a ratio of roughly 25/75 of their joint contributions.
50. In this equitable outcome enquiry I also take into consideration that the defendant
financed the overseas holiday trips that the parties enjoyed and also in effect
made available to the plaintiff the vehicles that he used for his own purposes ,
including his own job and career.
51. The non -pecuniary contributions of the plaintiff cannot be compared with the
circumstances that prevailed in Butters in that no ch ildren that had to be raised
and looked after were involved.
52. In my view, apportioning a 20% share of the universal partnership to the plaintiff
would be equitable in the circumstances of this case.
53. As regards the question as to whether the Court has the power to declare which
assets form part of the universal partnership and, if so, whether the value of the
defendant’s house should be included therein, the parties were not ad idem.
54. The plaintiff submitted that his Particulars of Claim are formulated widely enough
to include the house as one of the assets which he expressly alleges forms part
of the universal partnership. The plaintiff however adopts what his counsel refers
to as an “accrual -style approach” and requests that it be declared that the val ue
added to the house during the partnership forms part of the partnership assets,
alternatively that the Court should direct that the receiver / liquidator account for
the increase in equity in the property as part of the dissolution.
55. The defendant submit ted that the Court is not requested in the pleadings and
Joint Practice Note to declare which assets form part of the partnership but that it
does have the inherent jurisdiction to do so as part of determining what is to be
liquidated and distributed.
56. The defendant however submitted that the value of the house should not form
part of the universal partnership, based mainly on (a) the fact that it was
purchased by him prior to the formation of the universal partnership, (b) a
submission that it cannot be included unless a clear intention to contribute it to
the partnership is proven, (c) that the plaintiff did not contribute financially to the
improvements of the house whatsoever, and (d) that the r eferences in the
plaintiff’s evidence to the house as “our house” is legally insufficient to sustain an
argument that thereby the value of the house formed part of the universal
partnership. Lastly, the defendant submits that to include the house in the
partnership assets would result in unjustified enrichment of the plaintiff.
57. In Khan v Shaik 2020 (6) 375 (SCA), the Supreme Court of Appeal confirmed
that a universal partnership establishes personal contractual rights as opposed to
real rights and that a partner in a universal partnership accordingly does not have
a direct claim to an asset owned by the oth er party, which distinguishes it from a
marriage in community of property. Accordingly, it must be determined what the
parties intended in this regard: either a societas universorum bonorum, or a
societas universorum ex quaestu veniunt.
58. The plaintiff’s approach, namely that any accrual in the value of the property over
the period of the universal partnership falls to be included in the dissolution of the
partnership, is in accordance with the universum quae ex quaestu veniunt
construction, which is the less favourable to him, and which I accordingly accept
as the basis on which the property must be dealt with. I believe that it would be
prudent to state this in the order that I make.
59. Although the parties did not raise any issu es relating to the manner of appoin ting
a liquidator or the precise terms of such appointment, I am concerned that the
absence of such terms might give rise to a dispute and even further litigation. I
accordingly include in the order that I grant, additional provisions relating to the
practicalities of the liquidator’s appointment in line with the order that was
granted by the court a quo in Butters, which was confirmed by the Supreme
Court of Appeal.
60. It stands to reason that, if the defendant’s share can be paid to him by the plaintiff
without the need to realise assets, that would be far more equitable and
preferable. Having had insight into the financial affairs of the defendant, I am
concerned that he may not be able to pay whatever amount the liquidator finds to
be payable to the plaintiff immediately and I accordingly also include provision for
a reasonable period within which payment can be made as an alternative to
liquidating any assets. I do so in the exercise of the Court’s equitable jurisdiction.
61. Lastly, as regards costs, the plaintiff was substantially successful and I grant the
costs order requested by him.
62. I accordingly make the following order:
1. It is declared that a universal partnership existed between the parties of all
assets and liabilities acquired by them during the period from February
2011 to 23 April 2022 in which the plaintiff obtained a 2 0% and the
defendant a 80% share.
2. The universal partnership is dissolved as from 23 April 2022.
3. The increase in value of the defendant’s house situated at [...] C[...] Close,
Milnerton, over the period of the universal partnership, if any, falls within
the assets of the universal partnership.
4. The partners are to appoint a liquidator and receiver with authority to
prepare a final account and, if necessary, realise the universal partnership
assets and pay to the plaintiff 20% of the net proceed s thereof, the
remainder to be paid to the defendant together with interest thereon at the
legal rate calculated from date of summons to date of payment.
5. The receiver and liquidator shall have the power to provide for a method
and reasonable time period for the pay ment by the defendant to the
plaintiff of any amount that is found to be so payable as an alternative to
liquidating the relevant assets in terms of paragraph 4 above.
6. In the event that the parties are unable to reach consensus on the
appointment of a liquidator and receiver, the parties are authorized to
approach the court for directions in relation to such dispute.
7. The parties are also authori sed to approach the court for directions s hould
there be a dispute as to the period within which payment is to be made in
the event of the liquidator exercising the power set out in paragraph 5
above.
8. Costs follow the result and the defendant is ordered to pay the plaintiff’s
costs on the scale as between party and party, counsel’s fees to be taxed
on Scale B.
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D C JOUBERT AJ
Plaintiff’s counsel: Adv L Gabriel
Defendant’s Counsel: Adv M Botha