Andrew Kinloch Butters v Nomsa Virginia Mncora

The appellant and respondent met at a party in Grahamstown in 1988 and commenced a relationship. Two children were born of the relationship. In or about 1993 they lived together in Port Elizabeth as husband and wife. The appellant started a business which flourished and accumulated substantial assets. The relationship ended when the appellant married another woman on 15 November 2007 without the respondent's knowledge. The respondent successfully applied to the Eastern Cape High Court for a declaration that a universal partnership existed between them. The high court (Chetty J) granted an order on 7 December 2010 declaring that a universal partnership existed between the parties of all assets acquired during the period 1998 to 15 November 2007. The appellant unsuccessfully appealed to the Supreme Court of Appeal and to the Constitutional Court. During negotiations to resolve the matter, the appellant proposed to submit an audited statement of assets acquired between 1998 and 15 November 2007, aiming to exclude the bulk of his assets. The respondent then applied in terms of Rule 42(1)(b) to vary the order to replace 1998 with 1988, alleging a typographical error. The high court granted the application.

• Whether the high court had authority to vary its own judgment or order in terms of Rule 42(1)(b) and (c)
• Whether the reference to 1998 in the original order was a patent error, ambiguity, or omission
• Whether the commencement date of the universal partnership was material to the declaration
• The proper interpretation of the scope of the universal partnership declaration

1. The order of the high court is varied to read: 'paragraph 1 of the order granted in case no. 881/08 is amended as follows: "It is declared that a universal partnership existed between the plaintiff and the defendant in respect of all assets acquired by them up to 15 November 2007."' 2. Save for the above variation, the appeal is otherwise dismissed. 3. The appellant is to pay the respondent's costs in this appeal, including costs of two counsel, where employed.

A court has authority under Rule 42(1)(b) to vary its order to correct a patent error or omission, but only to the extent of such error or omission, and the variation must not alter the sense and substance of the original judgment. Where a date included in a judgment is irrelevant and unnecessary to the material findings and conclusions of the court, it constitutes a patent error that can be corrected, but the correction must align with the ratio decidendi of the original judgment. In a universal partnership declaration, where the existence of the partnership has been established, the commencement date may be immaterial; the relevant date is the termination date. The proper variation is to remove the irrelevant commencement date entirely rather than substitute another date that was not established by the evidence or findings.

The Court reiterated the well-established principle from Shill v Milner 1937 AD 101 that pleadings are made for the Court, not the Court for pleadings, and parties will only be kept strictly to their pleas where departure would cause prejudice or prevent full inquiry. The Court also confirmed the principles regarding universal partnerships between cohabitees as set out in the earlier appeal (Butters v Mncora 2012 (4) SA 1 (SCA)), including that: universal partnerships of all property extend beyond commercial undertakings; they can arise by tacit agreement derived from conduct; contributions need not be confined to profit-making entities but can include domestic responsibilities; and where partnership enterprise notionally includes both commercial undertaking and family life, domestic contributions cannot be denied. The Court noted that the general rule is that once a court has pronounced final judgment it has no authority to correct, alter or supplement it, as its jurisdiction has ceased, but acknowledged the established exceptions to this rule.

This case clarifies the application of Rule 42(1)(b) and (c) of the Uniform Rules of Court regarding when a court may vary its own judgment or order. It establishes that a court may correct patent errors that are irrelevant and unnecessary to the substance of the judgment. The case reinforces important principles regarding universal partnerships between cohabitees, including that: (1) the commencement date of such partnerships may be immaterial where the key issue is the existence and scope of the partnership; (2) universal partnerships can encompass both commercial undertakings and non-profit making aspects of family life; (3) contributions to a universal partnership need not be confined to a profit-making entity but can include domestic contributions such as maintaining the home and raising children. The judgment emphasizes substance over form in interpreting court orders and partnership agreements.