LORD COULSFIELD JA
The appellant and the respondent cohabited from about 1966 until a date not precisely established but probably between 1978 and 1981,
and had several children. The appellant had previously been married, in community of property, to Florah Mogorosi and lived with
her for several years and had a number of children. Florah Mogorosi became incapax before the appellant and respondent began living together, but the marriage still subsisted. After 1981, the appellant and the respondent ceased to live together, and subsequently the appellant has cohabited with another woman,
Esther, with whom he has several children. The essential issue in the present proceedings is whether the respondent is entitled to
claim any part of the appellant’s estate, on the basis of a universal partnership between her and the appellant during the
period of their cohabitation, and, if so, how that claim should in principle be calculated. After sundry proceedings in the Customary
Court and Customary Court of Appeal, the case was transferred to the High Court and eventually came before Phumaphi J, who on 12
August 2005 made an order requiring that an inventory of the whole estate of the appellant should be submitted to the Registrar and
that the estate should be divided in certain proportions between the appellant, the respondent and Florah. The appellant now appeals
against that order.
The proceedings in this case have extended over an unconscionable length of time. The respondent began proceedings in the Tonota Customary
Court in 1994. The dispute was later before the Serowe Customary Court in October 1995 and the Customary Court of Appeal in May 1996.
Thereafter it was taken on appeal to the High Court in 1996. Eventually the matter was referred to trial and the trial took place,
at inordinate length, in 2003 and 2004, leading to the judgement of 12 August 2005. In the course of the trial, evidence was given
about the property of the parties respectively and the course of the businesses in which they were engaged. The judge did not make
detailed findings about the effect of this evidence, and I do not think that it is necessary to attempt to do so in disposing of
this appeal. The essential questions for the purposes of the appeal are the length of the period during which the parties cohabited
and whether the character of their relationship during that period is of a kind to give rise to the inference that a universal partnership
was created.
It is clear that the cohabitation began in 1966, as the judge finds. Exactly when the cohabitation should be taken to have ended is
less clear. In about 1978, the respondent, by agreement between the parties, moved to Francistown, to work for Northern Wholesalers,
a company incorporated by the appellant and others and of which the appellant was a director. The result was that the respondent
was living in Francistown, while the appellant continued to live in Tonota to take care of other business interests. However, the
judge finds that there were inter-visits between the parties until some time in the 1980s. The respondent’s last child was
born in 1981 and although there may have been some questions raised about the paternity of that child, there seems also to be evidence
that the child was accepted by the appellant. I think therefore that the period of cohabitation may reasonably be taken to be from
1966 until 1981. In any event, I doubt whether, in the whole circumstances, the difference between 1978 and 1981 would make much
difference to the calculation of the parties’ rights.
As regards the nature of the relationship, the judge summarises the contentions of the parties along the following lines. He tells
us that the respondent’s case was that she went to Mmadunyane, where the appellant then was under the guise of going to work
in his shop, but that she was already his love and began to cohabit with him almost immediately. She was seventeen years of age at
the time. She soon became pregnant and ceased work until the child was born, but returned thereafter.
Throughout the cohabitation, she worked in the shop, at home and at the cattle post for no pay as a wife would do in an ordinary marriage
situation. The appellant clothed and fed her and the children. The parties later moved to Tonota where a new business had just been
established and went on to establish another business at new Mandunyane. In a nutshell, the respondent’s case was that she
contributed her time and labour to the growth of appellant’s businesses and his general wealth.
There was also evidence that at some time during the cohabitation the appellant approached the respondent’s family to ask for
her hand in marriage, and that the respondent changed her name to Mogorosi and that the children born during the cohabitation also
took that name. The judge also observes, at one point, that at some time the appellant sought to have his “marriage”
to the respondent dissolved by the High Court.
The appellant’s case, on the other hand, was that the respondent was an employee like any other and was fully remunerated for
her services. He claimed that he had gone further than remunerating her because he gave her and her children some cattle, and allowed
her to keep the proceeds of the sale of milk from Maradu cattle at Tholotsane (although this was disputed by the respondent, who
said that the proceeds were deposited in accounts for the appellant and the children).
The judge correctly identifies the question whether or not the respondent was remunerated for her services as a central question in
this case. He says that this comes to be a matter of the word of the appellant against that of the respondent because the evidence
of other witnesses called on behalf of the parties was unsatisfactory in several respects. In particular, he observes that none of
the witnesses called on behalf of the appellant in trying to establish that the respondent received remuneration gave clear evidence
that she did receive payment and that they gave inconsistent evidence: and he remarks that that was not surprising where the parties
were in effect husband and wife and employees would be unlikely to pry into their affairs. He also comments that the appellant contradicted
himself by saying, on the one hand, that the respondent was a mere employee but admitting, on the other, that he had paid Thagela and Kgomo ya metsi to the respondent’s family to confirm that she was his wife, whom he married because Florah was unwell and could not carry
out the duties of a wife. The judge sums up his findings on the evidence as follows:
“In my view, it is most unlikely that if the appellant regarded the respondent as his wife he would have allowed her to join a queue
of employees to receive pay. The fact that when the appellant was required to go and work at Northern Wholesalers where he had shares,
he elected to send the respondent instead, also shows the level of confidence he had in her as his “wife” not just an
employee. There is no evidence that she was placed in the scale against other employees and emerged the best performer before she
was assigned to work at Northern Wholesalers. This leads me to the conclusion that the respondent’s version is the more probable
and I therefore find that she regarded appellant as her husband and he regarded her as his wife. I also find that she worked for
the growth of the estate without remuneration. Of course she benefited from the estate the same way as the appellant did. I also
believe her that whatever efforts she put in, she did so in the belief that she was providing for her own future, the future of her
children and that of the appellant her “husband”.
On that basis of fact, which the appellant did not attempt to challenge in this appeal, the judge proceeded to refer to a number of
authorities including in particular Mbenge v Jele Mbenge 1996 BLR 142 and Isaacs v Isaacs 1949 1 SA 952 and to hold that the requirements for a tacit universal partnership, as interpreted in these cases, were satisfied.
The next question for this court, therefore, is what these requirements are, and how they can be applied in a case in which one of
the parties to the alleged universal partnership is already married in community of property before the partnership begins.
Before dealing with that, however, it is necessary to mention the question of prescription. As I have mentioned, this dispute originated
in the customary courts, and prescription cannot be pleaded in regard to matters governed by customary law. The appellant contends,
however, that once the case reached the High Court, the case for the respondent ceased to be a case based on customary law but one
based on the common law, so that the issue of prescription became relevant. There might well be something to be said for that contention,
but what happened when the case reached the High Court was that, after a good deal of preliminary skirmishing, the court ordered,
on 3 October 2003, that the matter be referred to trial, that the papers of record should stand and be treated as pleadings and that
parties were at liberty to file any further supplementary pleadings within thirty days. The issue of prescription was not raised
in any supplementary pleadings and was not referred to in a minute of a pre-trial conference also dated 3 October 2003 at which the
issues in dispute were identified. It is not clear exactly when prescription was first mentioned, but submissions were evidently
made to the judge, who dealt with it by saying, firstly, that prescription does not apply to matters subject to customary law and
that the reference for trial did not alter that and further saying:
“In any case the appellant could be said to be estopped from raising this point in limine at this late stage after participating in the proceedings right from the lowest customary tribunal up to this court. As one of the
architects of a consent order the appellant cannot now turn around and say that the consent order afforded him an opportunity to
raise the point by removing the case from the customary court’s jurisdiction and therefore prescription which is a plea in
bar of trial should not apply at this late stage of the proceedings. The consent order does not say so and I dismiss the objection
in limine.”
Section 16 of the Prescriptions Act requires that a party who wishes to raise a question of prescription shall do so in the pleadings,
subject to a power for the court to allow it to be raised at any stage. The obvious purpose is to prevent parties from wasting time
and money on an elaborate set of proceedings which cannot possibly succeed. In this case, the appellant had the opportunity to raise
the point in supplementary pleadings after the order making the reference to trial, but did not do so. There is no explanation for
this failure and at no point, it appears, did the appellant make a proper application for leave to raise the point. In these circumstances,
in my view, the issue was never properly before the court a quo, and should not be entertained by this court.
In his Heads of Argument, counsel for the appellant submits that, as is clearly correct, the appellant and Florah were lawfully married
in community of property before the association between the appellant and the respondent began, that the shares of spouses are indissolubly
tied up and that the community can only be terminated by an order of a competent court, and continues:
“It was consequently legally impossible for the appellant to sever his half-share of his joint estate with Florah in 1967 in order
to use that that to commence building a separate partnership and joint estate with the respondent.”
It is, however, an everyday matter for one, or even both, of the parties to a marriage in community of property to be involved in
business or professional partnerships, and to utilise some of the joint property in such enterprises. The question therefore is whether
there is anything in the nature of the tacit universal partnership which makes it incompatible with community of property. Counsel
refers to two cases, Conway v Conway 1966 (4) SA 225 and Oglodzinsk v Oglodzinsk1975 (1) SA 181. These confirm that a court order is required to terminate a community of property but do not take this issue any
further.
The case which laid the foundation for the subsequent decisions, such as Mbenge above, on which the judge relied, is Isaacs v Isaacs 1949 (1) SA 952. The parties in that case had been married and subsequently divorced according to Mohammedan rites but had never
been married according to the law of South Africa. As the facts are summarised in the headnote, both had engaged in commercial activities,
the husband devoting his whole time thereto, apart from periods of illness, while the wife combined these activities with personally
running the household and looking after the welfare of the parties’ children. In giving judgement, first of all, on a motion
for absolution on the ground of no prima facie case, Searle J [at p. 954]
distinguished between two forms of universal partnership. The first was the societas universorum bonorum, by which the contracting parties agreed to put in common all their property, both present and future: this form had fallen into disuse,
or even been prohibited, except between spouses. The second was the form known in Roman law as a partnership universorum quae ex quaestu veniunt, the effect of which, as described by Pothier, was:
“The parties thereby contract a partnership of all that they may acquire during its continuance, from every kind of commerce.”
Searle J. further held that the intention to enter into such a partnership could be inferred from the actings of the parties. Later,
in giving final judgement, he said [at p.960]:
“A partnership can be implied from the facts, even if there is no express agreement of partnership – vide Fink v Fink and Another 1945 WLD 226 at p. 228, and in my view it is the only reasonable inference to draw from these facts when regarded as a whole. Both parties devoted their energy and skill over a number of years in order to provide the necessaries of life and such a measure
of comfort and security as could be obtained for the common welfare in the home and the upbringing and education of their children.
The proceeds of their energies were at all times pooled and devoted to this common purpose and it was with this object that they
bought the land and built on it out of the profits derived from their work. To hold, as contended on behalf of the defendant, that
the intention of the plaintiff was to work for her “husband” and to assist him to accumulate for himself an asset which
he could dissipate at his pleasure, would be a most unreasonable inference to draw from the facts and contrary to all the probabilities,
more particularly as such would conflict with the recognised principles of the law of their faith.”
Later, on p.961, Searle J. considered how the respective shares of the partners should be assessed, and said:
“It is clear law that on dissolution each party gets a proportionate share of the assets according to his or her contribution, and
it is only when their respective contributions were equal or it is impossible to say that one has contributed more than the other
that they share equally - vide Fink v Fink and Another 1945 WLD 226. Now it is obvious that as each of the parties devoted their whole time to work, part of which, in so far as the plaintiff
was concerned consisted of carrying out the duties of a mother and housewife, the defendant had more time to devote to the actual
money-making side of their ventures and thus in a sense must have contributed a greater proportion of the labour directly to the
production of the profits. I do not think, however, that this is the correct approach. …. The object of the partnership was,
however, to provide for the household, and had the plaintiff devoted her time entirely to commerce, the cost of the household to
the partnership would be proportionately greater as it would have had to pay others to do the work done by the plaintiff. The result
would be a decrease in the nett profits, amounting possibly even to a loss. In the circumstances, therefore, the plaintiff’s
labours in the home, in part, if not entirely, formed part of her contribution to the partnership. If I am correct in this, then
clearly it is quite impossible to hold that the defendant contributed more than the plaintiff, and the parties are entitled to share
equally.”
It seems to me, therefore, that it is clear that the form of universal partnership at issue in cases like the present is more analogous
to an ordinary commercial partnership than to any form of community of property arising from a matrimonial relationship, and that
it might even be regarded as only a particular species of commercial partnership. That is consistent with the observation in V (also known as L) v De Wet NO 1953 (1) SA 612 that there is no lawful obstacle to the mistress of a man establishing a similar contract in a similar manner. If
so, there is no more inconsistency between such a partnership and a community of property than in the case of any other commercial
partnership. The suggestion that there is some inconsistency may arise from thinking of the rights of the partners in a universal
partnership as arising from some kind of informal, irregular or putative marriage, in which the woman’s rights arise from her
status as a “wife”. On the authorities quoted, in my opinion, that comparison would be incorrect. I should add that the
appellant’s heads refer to Annabhay v Ramlall and Others 1960 (3) SA 802 where the male party to an alleged universal partnership was lawfully married to another person, and suggest that
that case can be explained as one in which he had created a separate estate. That may well be the case, but the explanation of the
law in that case seems to me to be in line with what has been said above. In any event, the case was one in which the attempt to
prove a universal partnership totally failed on the evidence.
The law explained in Isaacs v Isaacs has been accepted in Botswana, notably in the decision in Mbenge v Mbenge 1996 BLR 142 and in Tape v Matoso Civ App No CACLB-051-06. In my opinion, the judge was right to follow these authorities, and given that his findings on the facts
were not challenged in the appeal, he was right to hold that a universal partnership had been created between the appellant and respondent.
The judge, however, went on to order that the amount of the existing estate of the appellant should be ascertained and divided by
setting aside one half for the benefit of Florah and dividing the remaining half between the appellant and the respondent on a 60/40
ratio. It may be questionable whether, on a strict application of the rules governing the distribution of the assets of a universal
partnership that approach would be correct. If the universal partnership is analogous to an ordinary commercial partnership, it would
follow that the rights of the partners should be ascertained at the time of the termination of the partnership. That would mean that
the value of the respondent’s share would be determined as at, say 1981, and it would then be necessary to compensate her for
the long period for which she has been denied payment of her share, by an award of interest or otherwise. However, the kind of calculation
which would be required by a strict application of the rules would be totally impracticable in the circumstances of this case. The
appellant and the respondent have now been separated for a long period of years during which they have neither lived together nor
engaged jointly in any kind of business. It may be possible to list the assets which belonged to the universal partnership in 1981,
along the lines of the respondent’s evidence before the customary court, but it would be futile to try to ascertain a money
value for those assets as at 1981, and any calculations of shares or interests based on such an approach would be speculative in
the extreme. In these circumstances, if we are not to deny the respondent an effective remedy for her just claims, we are driven
to take a broader and more equitable approach. To do so, we have to find a way of fairly weighing and allowing for the contributions
of all the interested persons. In Isaacs v Isaacs Searle J did that when he made a division between the parties, taking into account those contributions of the wife to which a financial
value could not be assigned as well as her contributions to the businesses of the parties. That is also essentially what the judge
did in this case in paragraphs 32 and 33 of his judgement.. He took account of the respondent’s contribution to the growth
of the estate and the universal partnership, and also of her contribution to the care of Florah’s children. He also gave full
weight to the fact that the appellant was already the owner of some property before 1966. He does not expressly give a reason for
ordering the division of the existing estate, but I am prepared to assume that he did so because of the impracticability of any other
calculation. The effect of the judgement is to give the respondent 20% of the appellant’s estate and I do not think that that
has been shown to be an inequitable outcome.
I think there are two difficulties about this approach. The first is that, as I have said earlier, the husband in a marriage in community
of property has the right of administration over the community estate. He must be taken to have committed Florah’s share of
the estate to the venture with the respondent. The consequence of this is that he must put back into the pool of the new venture
the 50% that the judge set aside for Florah. By the same process of reasoning however, the contribution of the appellant becomes
that much the greater, and we must make allowance for that in deciding the proportions in which the estate of the new venture is
to be divided. Although it can be no more than an educated equitable guess, I am inclined to accept the judge’s assessment,
except that I would describe it as 20% of the estate of the new venture rather than 40% of half of it.
The second difficulty is this. In his judgment the judge refers to “the whole estate” of the appellant when he allocates
it between the parties. By that he must be taken to mean the estate as at the date of his judgment.
We have no way of knowing the size of the appellant’s estate as at 12 August 2005 (the date of the judgment) or for that matter,
as at the date of this judgment. We have no reason to suppose it has shrunk, but for all we know it may have grown considerably.
There can be no equity in granting the respondent a 20% share of what may be a totally different estate from the estate of 1981.
It should be possible to ascertain what assets were in the estate on, say, 1 January 1981. But to value those assets in terms of 1981
values would be both impossible and inappropriate. Accordingly, and taking a broad and equitable approach, I would order a division
of assets on the following basis:-
1.
An agreed list is to be compiled of the assets of the universal partnership as at 1 January 1981.
2.
A value is to be placed upon such assets based on values as at the date of this judgment;
3.
Twenty per cent of this value is to be paid by the appellant to the respondent.
4.
Interest on the said twenty per cent is to run, at the court rate, from the date of this judgment to the date of payment;
5.
If the parties cannot agree on the list, or on the valuation, a liquidator is to be appointed by agreement between them, failing which,
to be appointed by the Registrar, whose costs are to be paid out of the estate before the division takes place.
6.
The appeal is allowed to the limited extent set out above. Since each party has achieved some measure of success, there will be no
order as to costs.
I would only add that this solution is one forced on us by the peculiar facts of this case, and may not be appropriate in other circumstances.
GIVEN AT LOBATSE ON THIS 30TH DAY OF JANUARY 2008
Given
_________
LORD COULSFIELD
JUDGE OF APPEAL
I agree
______________
N W. ZIETSMAN J A
JUDGE OF APPEAL
I agree.
__________
N J MCNALLY J A
JUDGE OF APPEAL
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