''Butters v Mncora'' is an important recent case in
South African law
South Africa has a 'hybrid' or 'mixed' legal system, formed by the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law syste ...
, especially with respect to
universal partnerships. An appeal against a decision in the Eastern Cape High Court, Port Elizabeth, by Chetty J, it was heard in the Supreme Court of Appeal by Brand JA, Heher JA, Cachalia JA, Mhlantla JA and Tshiqi JA on March 8, 2012. They delivered judgment on March 28, 2012. JJ Gauntlett SC (with RG Buchanan SC) appeared for the appellant, and A. Beyleveld SC (with NJ Mullins) for the respondent.
The court found that universal partnerships of all property which extend beyond commercial undertakings were part of
Roman-Dutch law
Roman-Dutch law (Dutch: ''Rooms-Hollands recht'', Afrikaans: ''Romeins-Hollandse reg'') is an uncodified, scholarship-driven, and judge-made legal system based on Roman law as applied in the Netherlands in the 17th and 18th centuries. As such, it ...
and still form part of South African law. Where the partnership enterprise extends beyond commercial undertakings, the contribution of both parties need not be confined to a profit-making entity.
The court held also that a universal partnership of all property does not require an express agreement. Like any other contract, it may also come into existence by tacit agreement: that is, by an agreement derived from the conduct of the parties.
The requirements for a universal partnership of all property, including universal partnerships between cohabitees, were found to be the same as those formulated by RJ Pothier, in ''A Treatise on the Law of Partnership'', for partnerships in general.
Finally, where the conduct of the parties is capable of more than one inference, the test for when a tacit universal partnership may be held to exist is whether it is more probable than not that a tacit agreement had been reached.
[Paras 18-19.]
See also
*
South African law of partnerships and trusts
References
Cases
* ''Butters v Mncora'' 2012 (4)
SA 1 (SCA).
Notes
{{Reflist
2012 in South African law
2012 in case law
South African partnerships and trusts case law
Supreme Court of Appeal of South Africa cases