V (Aka L) v De Wet, NO

• Jurisdiction: South Africa
• Judge: De Beer JP
• Judgment Date: 22 January 1953
• Citation: 1953 (1) SA 612 (O)
• Hearing Date: 15 January 1953
• Court: Orange Free State Provincial Division

De Beer, J.P.:

To the knowledge of the applicant, the late L., with whom H she lived continuously as man and wife for 21 years and to whom she bore two children, was a married man living apart from his lawful wife. On the death of L. in October, 1951, the respondent was appointed executor dative in his estate. Applicant now seeks a declaratory order to the effect that she is entitled to a half share of the whole estate and directing the respondent N.O. to

De Beer JP

pay the proceeds of such half share to the applicant. The grounds on which she bases her prayer are briefly that there existed between her and the late L. a universal partnership and that she in fact contributed the major portion of the present estate.

A The executor contends that all the evidence, both direct and implied, does not justify the inference of the existence of such partnership: that the onus rests on the applicant and that the evidence at the most discloses that she was prepared to accept the position of being L's B mistress in exchange for a roof, a bed, her clothes, and food, and that her prayer should in consequence be refused.

Mr. de Wet in a well-reasoned argument contended that although the facts relied on by applicant as tending to establish the existence of a partnership, may go to prove that applicant in effect acted as she would C have acted had a partnership actually existed, those acts of applicant were equivocal in that she most probably would have performed them in the capacity of mistress. Also, so continued the argument, the admitted fact that the parties both desired to enter into a marriage in community and intended doing so directly the obstacle of the existing wife was D surmounted, would militate against a universal partnership being entered into; it would be more probable that the parties would only direct their attention to their respective proprietary rights when the existing marriage was dissolved, and in any event the community would commence only on that date.

E There are two types of universal partnership known to Roman-Dutch Law: The societas universorum bonorum which according to certain authorities already fell into disuse in the early days - see: Grotius, 3.21.5; Voet, 17.2.4; de Wet and Yeats, Kontraktereg, p. 469 - except in so far as it may arise as a result of a marriage in community of property. F In Mograbi v Mograbi, 1921 AD 274, it was decided that where the parties intended to and did enter into a marriage in community which subsequently proved to be invalid, the contract arising out of the putative marriage was, in so far as the proprietary rights of the parties were concerned, akin to one of a universal partnership. Certain G other authorities, notably Pothier, Verhandeling van Societeiten (Bk. 2, sec. 2) and van der Linden, Koopman's Handboek (Bk. IV, pt. 1, sec. 12) deal with this type of contract as being usual and valid, but both stress the fact that no partnership having this effect will be held to have been entered into, unless it...