Butters v Mncora

The parties met in 1988 and lived together in a long-term cohabiting relationship akin to marriage. Two children were born from the relationship. The appellant conducted a successful business and accumulated substantial assets, while the respondent contributed primarily through maintaining the household and caring for the children. In 2010 the Eastern Cape High Court declared that a tacit universal partnership existed between them in respect of assets acquired during the relationship and ordered dissolution of the partnership as at 15 November 2007, when the appellant married another woman. The order referred to assets acquired between 1998 and 15 November 2007. After all appeals on the merits failed, the respondent applied under Uniform Rule 42 to correct the date from 1998 to 1988, alleging a patent error. The High Court granted the variation, and the appellant appealed to the Supreme Court of Appeal.

The appeal was partially successful. The High Court order was varied to declare that a universal partnership existed in respect of all assets acquired by the parties up to 15 November 2007, without reference to a commencement date. Save for this variation, the appeal was dismissed. The appellant was ordered to pay the respondent’s costs, including the costs of two counsel.

This case is significant for clarifying the scope of a court’s powers under Uniform Rule 42 to vary its own orders and for emphasising that such variations must not alter the substance of a final judgment. It also reinforces South African law on tacit universal partnerships between cohabitees and confirms that the precise commencement date of such a partnership may be irrelevant once its existence is established.