1. Butters V Mncora 2012 (4) Sa 1 (Sca) Case Summary

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  • Topic: Marriage, Law, Ontology
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  • Published : May 7, 2013
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1.Butters v Mncora 2012 (4) SA 1 (SCA)

2.Nomsa Virginia Mncora (1)

3.Mr Butters, the appellant, and Ms Mncora, the respondent, lived together for nearly 20 years as husband and wife but were never married. Butters was a business owner while Mncora ran their household and raised the children. (para 1) When the relationship ended, the respondent claimed half of the appellant’s assets based on the fact that she believed that a tacit universal partnership existed between them. (para 2)

4.Heher JA and Cachalia JA (15)

5.The appellant is appealing the claim that a tacit universal partnership existed between him and the respondent. (para 3)

6.The appellant is not appealing the percentage of his estate which Ms Mncora was awarded and is also not appealing the delictual damages for breach of promises which was awarded. (para 3)

7.It is pointed out by June Sinclair in The Law of Marriage Vol 1 274 that South African family law does not generally protect and support people who remain unmarried , even if they live together for an extended period of time. An example of this issue can be seen in Volks NO v Robinson 2005 (5) BCLR 446 (CC) at para 20. (para 11)

8.The societas universorum bonorum is when parties decided to share all their property from both the present and future, while the societas universorum quae ex quaestu veniunt is that only property acquired during the partnership will be shared. This case involves the first principle. (para 14)

9.Pothier said that there are 3 essential points which must be proven in order to establish if a universal partnership exists. The points are as follows: each party must bring either money, labour or skill into the partnership, the business must benefit both parties and the third essential is that a profit should be made. (R J Pothier A Treatise on the Law of Partnership (Tudor’s translation 1.3.8)) This can be seen in Bester v Van Niekerk 1960 (2) SA 779 (A) at 783H-784A. (para 11)

10.Brand...
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