Sources : caput 1

• Published date: 01 January 2010
• Date: 01 January 2010
• DOI: 10.10520/EJC74125
• Pages: 1-19

1

CAPUT 1

SOURCES

1.1 Primary common law sources of the South African law of

partnership*

1.1.1 Introduction

The law of partnership is one of the most neglected areas of South

African law of business enterprises, especially as far as proactive

legal development is concerned. For present purposes it is suff‌icient

to point to a few manifestations of this neglect.

The Chief Discipline Oriented Committee for Legal Science of the

Human Sciences Research Council concluded that the main empha-

sis of legal research in South Africa is on company law while little is

done on the law of partnership.1 A proposal that provisions relating

to the incorporation of professional and semi-professional groups

should not be accommodated in the Companies Act but rather in

a separate Incorporated Partnerships Act was rejected by the Van

Wyk de Vries Commission with the comment that the law of partner-

ship falls outside the scope of its mandate.2 In the 1982-memorandum

on the need for new legal form for small businesses, the close cor-

poration, the necessity of a comprehensive modern Partnership Act

was acknowledged, but described as a problem to be addressed at

a later date.3 Hence, in drawing up the Close Corporations Act 69 of

1984, certain provisions of the English Partnership Act of 1890 had

to be used as guidance.4 The statement by the Margo Tax Commis-

sion that no representations were received in respect of the taxation

of partnerships and that the Commission had to take the initiative

itself is also symptomatic.5

To this state of affairs the long process of development of the law of

partnership, the cursory discussion of the topic in the better known

Roman-Dutch sources and the disregarding of the lesser known and

less accessible sources of the ius commune made a def‌inite and

* See also Henning “’n Miskende vennootskapsregtelike kenbron uit die

ius commune” 1992 Journal of Contemporary Roman-Dutch Law 451.

1 HRSC 1985 Research Bulletin 32.

2 Main Report of the Commission of Enquiry into the Companies Act RP

45/1970 par 52.01.

3 Naudé “The need for a new legal form for small business” 1982 Modern

Business Law 13.

4 Henning “Die aanspreeklikheid van ’n beslote korporasie vir die han-

delinge van ’n lid en enkele ander aspekte van eksterne verhoudings”

1984 Journal for Juridical Science 157.

5 Report of the Commission of Enquiry into the Tax Structure of the

Republic of South Africa RP 34/87 par 11.44.

2

unfortunate contribution. There are some obvious exceptions, but

unfortunately not nearly enough.6

The progressive revision of partnership legislation and codes in vari-

ous jurisdictions has not escaped the notice of researchers. Thus,

the innovative revision of the Uniform Partnership Act of 1914 in the

United States initiated by the National Conference of Commissioners

on Uniform State Laws in 1986 and resulting in the acceptance of

the Revised Uniform Partnership Act7 and their enactment by various

States,8 as well as the proposals for the reform in the Netherlands as

contained in draft title 13 of book 7 of the Nieuw Burgerlijk Wetboek9

as well as the proposals for the introduction of a modern partner-

ship act and the repeal of the Partnership Act 1890 and the Limited

Partnership Act of 1907 in the United Kingdom,10 form the subject of

an ongoing research project of the Centre for Business Law of the

University of the Free State and in co-operation with the Centre for

Company and Partnership Law of the Institute of Advanced Legal

Studies of the University of London.11

Although statements by the Standing Advisory Committee on Compa-

ny Law in 1989 and 1997 and the South African Law Commission in

199112 raised the expectation for a modern South African Partner ship

6 For example, Delport Gedingvoering tussen vennote (1977); Beinart

“Capital in partnership” 1960 Acta Juridica 118-155.

7 Although not technically correct, the Uniform Partnership Acts of 1992,

1993 and 1994 can collectively and for the sake of brevity be referred to

as the “RU PA ”.

8 UPA Revision Subcommittee of the ABA Partnership Committee Should

the Uniform Partnership Act be revised? (1986) 8; Reuschlein and Wil-

liam The law of agency and partnership (1990) 248; Weidner “A per-

spective to reconsider partnership law” (1988) 16 1 Florida State Uni-

versity Law Review 3; Ribstein “A mid-term assessment of the project

to revise the Uniform Partnership Act” 1990 The Business Lawyer 111;

Weidner “Three policy decisions animate revision of the Uniform Part-

nership Act” 1991 The Business Lawyer 427; Weidner and Larson “The

Revised Uniform Partnership Act: The Reporters’ Overview” 1993 The

Business Lawyer 1; Cooper “The Texas Revised Uniform Partnership

Act and the Texas Uniform Partnership Act” 1994 Texas Bar Journal 828.

9 See Van Mourik Rondom de personenvennootschap (1989) 8-14;

Maeijer “Vennootschap” 1973 Nederlands Juristenblad 85.

10 See e.g. Henning and Snyman “Revision of the law of partnership in

the United States. A commendable precedent?” 1997 South Afr ican

Law Journal 684; Henning and Snyman “Die regsaard van die ven-

nootskap in twee stelsels: Nederland en Skotland” 2 Corporate Law

Development Series 104.

11 See e.g. Henning “Partnership law review: The joint consultation docu-

ments in historical and comparative perspective” 2004 The Company

Lawyer 163-171.

12 See Cilliers et al Cor porate Law (1992) 22.