B[…] v B… [2025] ZAFSHC 325 (16 October 2025)
Click here to download the case
The plaintiff and the defendant were spouses who were married out of community of property, excluding accrual. They married on 30 July 2011 and divorced on 3 May 2022.
The plaintiff alleged that he and the defendant entered into a partnership in respect of a certain guesthouse in Boshof, Free State. He therefore claimed for dissolution of the partnership and division of the partnership assets.
The defendant, on the other hand, denied the existence of the partnership.
The Court (Jordaan AJ) discussed the legal principles applicable to partnerships. In respect of the dissolution of a partnership, the court found that a partner may bring an application or action to have a partnership liquidated and wound up in the absence of a provision for dissolution in the partnership agreement.
The court, referring to Fink v Fink 1945 WLD 226 found that a marriage out of community of property does not preclude the existence of a partnership. The same was found in Mühlmann v Mühlmann 1984(3) SA 102 (A) but there the court emphasised that there must be an intention to contract and that the conduct from which a contract is sought to be inferred, must not simply be conduct which reflects what is ordinarily to be expected of a wife in a given situation.
The Court then found that the essentialia for a special contract or partnership as laid down in Pezzuto v Dreyer 1992 ZASCA 46; 1992(3) SA 379 (AD); [1992] ALL SA 81 (A) (Pezzuto) at 390A-B (https://www.saflii.org/za/cases/ZASCA/1992/46.html) is also appliable in respect of universal partnerships between spouses married out of community of property.
The essentialia are:
- that each party to the partnership brings something into the partnership, whether it be money, or his labour or skill;
- that the business should be carried on for the joint benefit of both parties;
- that the object should be to make a profit.
The Court also explained the distinction between two types of universal partnerships. One in which the parties agree to put in common all their property, both present and future, is known as societas universum bonorum as was stated in Isaacs v Isaacs 1949(1) SA 952 (C) and is akin to community of property; while societas universorum quae ex quaestu veniunt is a universal partnership in which the parties agree that all they may acquire during the existence of the partnership, from every kind of commercial undertaking, shall be partnership property. See in this respect Butters v Mnorca [2012] ZASCA 29; 2012(4) SA 1 SCA; [2012] 2 ALL SA 485.
The plaintiff was a furniture manufacturer in Tanzania when he entered into a marriage with the defendant who has worked as a banking consultant, prior to her retirement and was living in Pretoria. Subsequent to their marriage, they relocated to a farm in the Boshof area, which they rented. The cost of living made it virtually impossible for the parties to maintain a decent living standard. A friend of the plaintiff, Mr Theron, offered that they could live in his vacant house in Boshof, free of charge, on condition that they repair the house as it has fell in disrepair through neglect by previous tenants.
Once they moved to the vacant house in Boshof, there was a burst of economic growth in sunfarming in the Boshof district resulting in an influx of workers into town. After ascertaining that they have the necessary skills, they decided to establish a guesthouse out of the neglected house. At a later stage, the parties decided to purchase the property in the name of the defendant only, since she received certain benefits from the bank as a former employee. The plaintiff had to stand surety.
After evaluating the evidence, the court found that an express oral agreement of partnership in respect of the guesthouse in Boshof, Free State was entered into by the parties and from the evidence and their subsequent conduct, they had the requisite animus contrahendi to form a universal partnership, they each brought something into the partnership, the partnership was carried on for their joint benefit and the object was to make a profit.
Taking all the evidence into account, the Court found that it was clear that the parties poured everything they had into this universal partnership. Money from other income streams were ploughed into this venture to realise the guesthouse, assets were sold in order to purchase a reliable vehicle to use in the business. The house could be purchased because of the considerable deposit by the defendant. The sale was approved because the plaintiff stood surety and the plaintiff also paid the transfer fees. The Court thus found that the house, as well as the two erven on which it stood, formed part of the universal partnership. The court further found that this universal partnership was a societas universum bonorum.
The Court declared that a universal partnership existed between the plaintiff and the defendant in equal shares in respect of the guesthouse business in Boshof, Free State. The Court further declared this universal partnership to be dissolved with effect 3 May 2022 (date of divorce).
The Court appointed a liquidator to distribute the assets. The defendant was ordered to pay the costs.
Executors and estate practitioners are regularly confronted with claims from parties alleging that they were in a universal partnership. This Court case provides good guidelines to follow to establish if a partnership existed or not.
Summarised by Jan du Plessis, FISA CEO