The dissolution of universal partnerships in South African law : lessons to be learnt from Botswana, Zimbabwe and Namibia

• DOI: 10.17159/2225-7160/2020/v53a9
• Pages: 123-139
• Author: Liesl Hager
• Published date: 01 June 2020
• Date: 01 June 2020

Dissolution of universal partnerships in South African law 123

The dissolution of universal partnerships in

South African law: Lessons to be learnt

from Botswana, Zimbabwe and Namibia

Liesl Hager

LLB LLM (UP)

Research, Marketing and Publishing Assistant, Pretoria University Law Press,

Centre for Human Rights, Faculty of Law, University of Pretoria

SUMMARY

The universal partnership is a unique common-law creature that offers

valuable benefits during its subsistence and especially upon its dissolution.

This article is concerned with the application of the dissolution of universal

partnership as an interchangeable legal remedy, by providing litigants with

contractual remedies. Foreign jurisdictions such as Botswana, Namibia and

Zimbabwe have used the consequences of the dissolution of the universal

partnership in various cases from putative marriages to customary law

cases in order to do justice between the parties. These foreign courts have

applied the consequences of dissolution in a reformative and liberal

manner, without being side-tracked by legislative departures and debates.

Although much debate surrounds the interchangeable approaches followed

by the courts when using this contract in cases of putative marriages,

unrecognised religious marriages, cohabitation and customary law, it is

nonetheless applied as a remedial measure. The intended “single marriage

statute” and relevance thereof on the universal partnership is also explored

in this article. The difference between intimate and commercial universal

partnerships as well as the drawbacks of using the universal partnership in

the context of cohabitation is shortly discussed. It is suggested that our

courts more willingly provide contract-based relief to litigating parties by

following a liberal application the universal partnership. Unmarried

cohabiting persons are often left without legislative recourse and remedies

as the intended “single marriage statute” and the Domestic Partnership Bill

of 2008 has not yet been enacted into law. For this reason a reformative,

progressive and liberal application of the universal partnership, as

observed in foreign law, may certainly allow our courts to protect these

vulnerable parties.

1 Introduction to universal partnerships

The universal partnership in South Africa has secured a very unique niche

in our modern multi-cultural pluralistic legal system. A universal

partnership will only exist if its three essentials are present. Firstly, each

party brings something into the partnership, whether it be money, labour

How to cite: Hager ‘The dissolution of universal partnerships in South African law: Lessons to be learnt from

Botswana, Zimbabwe and Namibia’ 2020 De Jure Law Journal 123-139

http://dx.doi.org/10.17159/2225-7160/2020/v53a9

124 2020 De Jure Law Journal

or skill.1 Secondly, the partnership should be carried on for the joint

benefit of both parties. Thirdly, the object should be to make a profit and

lastly, the contract should be a legitimate one.2

In this article the dissolution of universal partnership is viewed

through multiple lenses from ancient Roman law to customary law. As

the universal partnership is constantly developing, adapting and finding

application in our law, the main inquiry of this article is concerned with

the remedial application of the dissolution of the universal partnership in

South Africa and abroad. The instances where the universal partnership

is often employed to a remedial extent is usually rooted in putative

marriages, unrecognised religious marriages, unregistered customary

law marriages and unmarried intimate or cohabitation relationships,

where women often find themselves with little or no legal recourse,

except for the contractual remedies offered by the universal partnership.

2 Choice of foreign law

Zimbabwe has a dual legal system, comprised of general law (Roman-

Dutch common law and legislation) and customary law.3 Zimbabwe

retained a large part of South African private law which it inherited from

its predecessor, Southern Rhodesia which attained independence from

Britain in 1980.4 Botswana inherited most of its private law from the

Cape of Good Hope; therefore it shares a common law heritage with

South Africa.5 Botswana has a pluralistic legal system in which both the

common law and customary law operate. Namibia was previously

administered by South Africa until its independence in 1990 and as a

result thereof the private law of Namibia is largely inherited from South

Africa.6 The Constitution of the Republic of Namibia, 1990 makes

1 Cassim et al, The law of business structures (2015) 13. See also Gibson et al,

South African mercantile and company law (2003) 241 and Pothier A treatise

on the contract of partnership: With the civil code and code of commerce

relating to that subject in the same order translated by Tudor (1854) 5-6.

2Bester v Van Niekerk 1960 2 SA 779 (A) confirmed that this last requirement

has been discounted by our courts for being common to all contracts.

3 S 192 of the Constitution of Zimbabwe, 2013 provides that the law to be

administered in the country is the law in force on the effective date of the

Constitution. The law in force was provided for in S 89 of the Lancaster

House Constitution, which provides that the law applicable in Zimbabwe is

Roman Dutc h Law and Af rican Cu stomary Law, as mo dified by subsequ ent

legislation.

4 Zimmermann et al, Southern Cross: Civil law and common law in South

Africa (1996) 4. See also SADC website: https://www.sadc.int/member-

states/ (accessed 2019-09-01).

5 Zimmermann et al, 3.

6 Zimmermann et al, 3.