The actio pro socio revisited

• Jurisdiction: South Africa
• Published date: 27 November 2019
• Pages: 76-89
• Author: Snyman-Van Deventer, E.
• Date: 27 November 2019

THE ACTIO PRO SOCIO REVISITED

ELIZABETH SNYMAN-VAN DEVENTER*

Professor, Mercantile Law, Faculty of Law, University of the Free State

Abstract

The common-law actio pro socio has become part of the South

African law of partnership as the action by which partners’ mutual

rights and duties can be enforced. Although it is generally accepted

that the actio pro socio can be instituted on the dissolution of the

partnership, whether it can also be brought while the partnership

still exists is less clear. In an attempt to bring greater clarity on the

issue, this contribution def‌ines the position of actio pro socio in

South African law, and then takes the reader on a brief

chronological journey through the South African case law which

has crafted the country’s approach to this remedy. It emerges that

the courts’ distinguish between bringing the actio pro socio while

the partnership still exists and after its dissolution, and that it is

indeed possible to institute the action during the existence of the

partnership without automatically signalling its dissolution. This is

also conf‌irmed by Roman and Roman-Dutch law. Those

instrumental in shaping the country’s law of partnership are

therefore urged not to lose sight of the Roman and Roman-Dutch

origins of this arm of the law in developing a generally empowering

partnership law for South Africa.

I INTRODUCTION

The institution of the actio pro socio has been considered by the South

African courts on numerous occasions — most recently in Morar v Akoo

(‘Morar’).

1

The problem most generally encountered is whether this

action can be brought while the partnership still exists.

There have been various approaches to this question. The Roman-

Dutch jurists, in particular, have been at loggerheads in this regard.

2

While some Romanists believe that bringing the actio pro socio must

necessarily result in the dissolution of the partnership, as ‘litigation

* BIuris LLB LLM LLM LLD (UFS).

1

2011 (6) SA 311 (SCA).

2

Delport, ‘Gedingvoering met die actio pro socio tydens die bestaan van die vennootskap’

(1979) 43(3) THRHR 288 at 295; Snyman & Henning, ‘Die actio pro socio as vennoot-

skapsregtelike remedie’ (1998) 22(2) TRW 20 at 26.

76

(2019) 31 SA Merc LJ 76

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