In Bwanya v Master of the High Court, Cape Town and Others  ZACC, the court found that “the moment a universal partnership is proven to be in existence between the parties, it becomes a legally binding and valid arrangement, as it is the case with a traditional marriage.”
A universal partnership, therefore, provides legal protection to partners who would otherwise have no recourse and gives couples an alternative to formal marriage. The existence of this type of partnership is not, however, always apparent, especially where the parties did not enter into a written agreement.
This was the situation in a recent case held in the High Court of South Africa, Western Cape Division, Cape Town. The plaintiff sought a declaratory order to declare that a universal partnership existed between herself and the defendant in respect of all properties and monies acquired by them during their relationship and to declare the plaintiff to have a 50% share of the partnership.
As there was no written agreement between the parties, the burden of proof was on the plaintiff to prove the existence of a universal partnership, and she relied on the implied agreement between herself and the defendant. The court referred to the Supreme Court of Appeal’s case between Butters v Mncora, where the court found that a universal partnership of all property does not require an express agreement and that it can come into existence by a tacit agreement due to the conduct of the parties.
In the above case, the court found that the plaintiff presented more than conclusive proof that a tacit universal partnership existed between herself and the defendant during their relationship and that she is entitled to a 50% share of the assets. The specific facts of each case will still play an important role when courts have to decide in such matters.
Written by Wessel de Kock