THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 419/13

In the matter between:

ANDREW KINLOCH BUTTERS

Appellant

and

NOMSA VIRGINIA MNCORA
Respondent

Neutral citation: Butters v Mncora (419/13) [2014] ZASCA 86 (30 May
2014)

Coram:
Shongwe, Wallis, Willis JJA, Mathopo and Mocumie AJJA

Heard:
23 May 2014

Delivered: 30 May 2014

Summary: Civil Procedure – interpretation of Rule 42(1)(b) and (c) –
circumstances in which court can alter or amend judgment or order – universal
partnership – relevance of commencement date – not relevant.

ORDER
________________________________________________________________

On appeal from: Eastern Cape High Court, Port Elizabeth (Chetty J sitting as
court of first instance):
1 The order of the high court is varied to read:
„paragraph 1 of the order granted in case no. 881/08 is amended as follows:
“It is declared that a universal partnership existed between the plaintiff and the
defendant in respect of all assets acquired by them up to 15 November 2007.”‟
2 Save for the above variation, the appeal is otherwise dismissed.
3 The appellant is to pay the respondent‟s costs in this appeal, including costs of
two counsel, where employed.

JUDGMENT
______________________________________________________________

Shongwe JA (Wallis, Willis JJA, Mathopo and Mocumie AJJA concurring)

[1] On 7 December 2010 (in case no. 881/08) the Eastern Cape High Court,
Port Elizabeth (Chetty J) made an order against the appellant, inter alia, that „It
is declared that a universal partnership existed between the plaintiff
[respondent] and the defendant [appellant] of all assets acquired by them during
the period 1998 to 15 November 2007‟. The appellant unsuccessfully appealed
to this Court and his application for leave to appeal to the Constitutional Court
suffered the same fate. Subsequently, the respondent applied to the high court in
terms of Rule 42(1)(b) of the Uniform Rules of Court, alternatively the common
law, to have the aforesaid order varied by replacing the year 1998 with the year
1988. The application was granted. This appeal is with the leave of the high
court.

[2] The facts are largely common cause. The undisputed evidence shows that
the appellant and the respondent met each other for the first time at a party in
Grahamstown in 1988 and fell in love. Two children were born of the
relationship. In or about 1993 they lived together in Port Elizabeth as husband
and wife. In the meantime, the appellant had started a business, which
flourished and, as a result, the appellant accumulated substantial assets. Cracks
in the relationship appeared and the final break came when the appellant
married another woman on 15 November 2007 without the respondent‟s
knowledge. The relationship came to an end. (For a detailed account of the facts
see reported case Butters v Mncora 2012 (4) SA 1 (SCA)).

[3] As has already been mentioned, the respondent successfully applied to
the high court for a declaration that a universal partnership existed in respect of
all their assets, which were principally in the nominal ownership of the
respondent. In granting the application, the high court also ordered that the
universal partnership be dissolved with effect from 15 November 2007 and that
the respondent was entitled to be paid 30 per cent of the nett proceeds of the
assets.

[4] After the appellant unsuccessfully applied for leave to appeal to the
Constitutional Court, negotiations commenced between the parties to have the
matter resolved finally in accordance with the court order. On 22 May 2012 the
appellant‟s attorneys wrote to the respondent‟s attorneys advising them that
there may not be a need to appoint a receiver and liquidator to realise the assets
of the universal partnership. They were prepared to submit an audited statement
of the assets acquired by both parties between 1998 and 15 November 2007.

The appellant also indicated that if the audited statement was acceptable to the
respondent‟s auditors, the parties could agree to a distribution of 30 per cent
payable to the respondent, without the necessity of appointing a receiver and
liquidator. The basis for this proposal was the reference in the order to assets
acquired by the parties from 1998. The appellant‟s aim was to exclude from the
distribution the bulk of the assets and in particular the source of his wealth,
being the successful business he had established.

[5] Thereupon, the respondent indicated that the year 1998 in the order of the
high court was a typographical error and it should have read 1988 because it
was common cause, so respondent argued, that 1988 was the year in which the
parties first met and commenced their relationship. As a result, a dispute arose.
The respondent brought an application in terms of Rule 42(1)(b), alternatively
the common law, to correct what was alleged to be a patent error. In a
supplementary affidavit, the respondent introduced a further alternative claim
based on Rule 42(1)(c) that the reference to 1998 in the order was the result of a
mistake common to the parties. The appellant opposed this application. Hence
the judgment of Chetty J handed down on 23 April 2013 which is the subject of
this appeal.

[6] It is instructive to note what the respondent had requested the high court
to order. The respondent asked the high court to vary paragraph A1 of the order
of Chetty J, dated 7 December 2010, to read 1988 instead of 1998 in terms of
Rule 42(1)(b). In addition, „irrespective of the outcome of Prayer 1 above,
paragraph A1 of the said order be interpreted to include all assets acquired by
the parties of whatever nature and whenever acquired which they possessed as
at 15 December 2007‟.

[7] The high court found in favour of the respondent. It concluded 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‟

[8] The issues for determination before this Court are whether the high court
had the authority to vary its own judgment or order and whether the alleged
patent error was attributable to the high court itself rather than to the
respondent‟s legal representative. Uniform Rule 42(1) reads as follows:
„(1) The court may, in addition to any other powers it may have, mero motu or upon the
application of any party affected, rescind or vary:
(a)   An order or judgment erroneously sought or erroneously granted in the absence of any
party affected thereby;
(b)   an order or judgment in which there is an ambiguity, or a patent error or omission, but
only to the extent of such ambiguity, error or omission;
(c)   an order or judgment granted as the result of a mistake common to the parties.‟

[9] The appellant submitted that the factual foundation for the year date 1998
was because it was the year in which the parties agreed to marry. Therefore, so
the reasoning went, the high court ought not to have varied the order to 1988.
Counsel for the appellant argued that the year date 1998 was not a patent error
because the respondent pleaded her case in the particulars of claim as such.
Therefore, he argued further that the court order was simply a regurgitation of
what was pleaded. He submitted that the initial judgment of Chetty J was
correct and that this Court cannot at this late stage interfere with that order in
the absence of an amendment of the particulars of claim. This submission is

flawed because it misunderstands the purpose of pleadings. De Villiers JA in
Shill v Milner 1937 AD 101 at 105 quoted Innes CJ as saying that:
„The object of pleading is to define the issues; and parties will be kept strictly to their pleas
where any departure would cause prejudice or would prevent full inquiry.  But within those
limits the Court has wide discretion. For pleadings are made for the Court, not the Court for
pleadings. Where a party has had every facility to place all the facts before the trial Court and
the investigation into all the circumstances has been as thorough and as patient as in this
instance, there is no justification for interference by an appellate tribunal merely because the
pleading of the opponent has not been as explicit as it might have been.‟
(See Robinson v Randfontein Estates G M Co Ltd 1925 AD 173).

[10] In this case, the date upon which the universal partnership was alleged to
have commenced was part of the narrative of events, rather than a vital element
of the scope and ambit of the partnership.
The high court observed that –
„[24] …. 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.‟

[11] These findings were confirmed and supplemented by this Court where
Brand JA observed that –
„[18] In this light our courts appear to be supported by good authority when they held,
either expressly or by clear implication that:
(a) Universal partnerships of all property which extend beyond commercial undertakings
were part of Roman Dutch law and still form part of our law.
(b) 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.
(c) 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.
(d) 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 had been reached.
(See eg Ally v Dinath 1984 (2) SA 451 (T) at 453F-455A; Mühlmann v Mühlmann 1981 (4)
SA 632 (W) at 634A-B; Mühlmann v Mühlmann 1984 (3) SA 102 (A) at 109C-E; Kritzinger
v Kritzinger 1989 (1) SA 67 (A) at 77A; Sepheri v Scanlan 2008 (1) SA 322 (C) at 338A-F;
Volks NO v Robinson 2005 (5) BCLR 44 (CC) para 125; Ponelat v Schrepfer 2012 (1) SA
206 (SCA) paras 19-22; J J Henning Law of Partnership (2010) 20-29; 19 Lawsa 2 ed  para
257.)
[19] Once it is accepted that a partnership enterprise may extend beyond commercial
undertakings, logic dictates, in my view, that the contribution of both parties need not be
confined to a profit making entity. The point is well illustrated, I think, by the very facts of
this case. It can be accepted that the plaintiff‟s contribution to the commercial undertaking
conducted by the defendant was insignificant. Yet she spent all her time, effort and energy in
promoting the interests of both parties in their communal enterprise by maintaining their
common home and raising their children. On the premise that the partnership enterprise
between them could notionally include both the commercial undertaking and the non-profit

making part of their family life, for which the plaintiff took responsibility, her contribution to
that notional partnership enterprise can hardly be denied.
…
[23] The plaintiff‟s case is not that she and the defendant had entered into a commercial
partnership which was confined to the Hitech business. Her case is that they had entered into
a partnership which encompassed both their family life and the business conducted by the
defendant. In view of what I have said earlier, I have no conceptual difficulty with a
partnership agreement in those terms. The validity of the plaintiff‟s proposition that they
tacitly agreed to share everything, including the income of the business conducted by the
defendant, must therefore be approached from that vantage point.‟

[12] It is clear that the appellant‟s case was not, in truth, concerned with when
the universal partnership began. Rather it has been about him denying the
existence of a universal partnership all together and his refusing to share
anything with the respondent. The essence of the dispute was the sharing of the
assets of the parties and not the date of commencement of the universal
partnership.

[13] Once the high court and this Court found that a universal partnership
existed, the commencement date of such partnership was irrelevant. However
the date of termination was relevant. The question whether or not a universal
partnership came into existence was decided by the high court and confirmed by
this Court on appeal. This appeal before us is not about redefining a universal
partnership but about determining the correctness of the variation.

[14] The general rule, now well established in our law, is that once a court has
duly pronounced a final judgment it has no authority to correct, alter or

supplement it. The reason is that its jurisdiction in the case having been finally
exercised has ceased. (See Firestone South Africa (Pty) Ltd v Genticuro AG
1977 (4) SA 298 (A) at 306 F-H; West Rand Estates Ltd v New Zealand
Insurance Co Ltd 1926 AD 173 at 176, 178, 186 – 7 and 192.)

[15] However there are exceptions to this rule. The principle that a court may
clarify its judgment or order if, on a proper interpretation, the meaning remains
uncertain and it seeks to give effect to its true intention is trite. The sense and
substance of the order ought not to be altered. (See Mostert NO v Old Mutual
Life Assurance Co (SA) Ltd 2002 (1) SA 82 (SCA) para 5.)

[16] The high court reasoned that the year date 1998 was a typographical error
in the particulars of claim of the respondent in the trial action. I agree that its
inclusion was clearly a patent error in the first place, inasmuch as it was
irrelevant and unnecessary but the substitution and variation thereof was
incorrect. It was incorrect because it went against the evidence adduced during
the trial and also against the body of the ratio decidendi of the high court as well
as this Court‟s reasons for dismissing the appeal. The order must therefore be
varied to give effect to the conclusions of the trial court as endorsed by this
Court.

[17] Brand JA elegantly summed up the conclusion by this Court as follows-
„[31] To complete the picture: the defendant did not argue – and I believe rightly so – that the
third element of a partnership in terms of Pothier‟s formulation had not been satisfied. On all
the evidence it is clear that the all-embracing venture pursued by the parties, which included
both their home life and the business conducted by the defendant, was aimed at a profit; a

profit which, in my view, they tacitly agreed to share. On the only issue before us, I therefore
agree with the finding of the court a quo, that the plaintiff had succeeded in establishing a
tacit universal partnership between her and the defendant.‟

[18] In the result the following order is made:-
1 The order of the high court is varied to read:
„paragraph 1 of the order granted in case no. 881/08 is amended as follows:
“It is declared that a universal partnership existed between the plaintiff and the
defendant of all assets acquired by them up to 15 November 2007.”‟
2 Save for the above variation, the appeal is otherwise dismissed.
3 The appellant is to pay the respondent‟s costs in this appeal, including costs of
two counsel, where employed.

_______________________

J B Z SHONGWE

JUDGE OF APPEAL

Appearances

For the Appellant:
R G Buchanan SC

Instructed by:

Spilkins Inc, Port Elizabeth;

Symington & De Kok, Bloemfontein.

For the Respondent:
A Beyleveld SC with him O H Ronaasen

Instructed by:

Lulama Prince & Associates, Port Elizabeth;

Honey Attorneys, Bloemfontein.
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
30 May 2014
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.
* * *
ANDREW KINLOCH BUTTERS v NOMSA VIRGINIA MNCORA
The SCA today dismissed with costs an appeal by Mr Butters who was resisting an order to
varying another order made by the Eastern Cape High Court (Port Elizabeth).

The high court declared that a universal partnership existed between Mr Butters and Ms
Mncora and that all assets acquired by them during the period 1998 to 15 November 2007 be
shared, with Ms Mncora getting 30 per cent of the nett proceeds of the assets. This Court, on
appeal confirmed this order.

Ms Mncora, subsequently approached the high court requesting that the year date 1998 be
substituted with 1988. The application was granted, albeit opposed.

The varied order was the subject of this appeal. The appeal was dismissed because the date
upon which the universal partnership was alleged to have commenced was of the narrative of
events, rather than a vital element of the partnership. It was therefore held that the year date
of commencement of the partnership was irrelevant, only the termination was germane.

It was further held that the general rule is that once a court has duly pronounced a final
judgment it has no authority to correct, alter or supplement it because its jurisdiction in the

case has ceased. The exception being that, if needs be, provided the sense and substance is
not altered. Alternatively, in terms of Rule 42(1) of the Uniform Rules of Court, a court may,
out of its own, or upon an application by any affected party vary or rescind an order or
judgment erroneously granted or a patent error or omission or as a result of a mistake
common to all the parties.