Some Manifestations of The Statutory Recognition of A Partnership As An Entity
Some Manifestations of The Statutory Recognition of A Partnership As An Entity
JJ Henning
Summary
The general rule in South African law is that a partnership has no existence in itself
distinct from the partners of which it is composed. A brief analysis of South African
legislation, however, reveals a significant number of instances departing from the
general rule to some extent. This leads to a conclusion that, notwithstanding the
general rule, whether or not a partnership can be treated as a mere aggregate of
individuals or a “juristic person”, “entity”, “person”, “private body” or the like for
purposes of a particular statutory provision is a matter of careful interpretation.
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1. Introduction
Internationally and historically, considerable debate has been devoted
to the respective merits of the entity and aggregate theories of the legal
status of partnership and, consequently, the extent to which courts and
legislators have treated or should regard the partnership as an entity
distinct from the partners or merely as a collection of individuals. Some
controversy still remains.1
From early on, South African jurisprudence has in the main2 regarded
a partnership as a mere aggregate or collection of individuals, having no
separate identity or existence apart from its members.3
Thus, the basic principle or general rule in South African law is that a
partnership is not a legal entity or persona separate from its members; it has
no existence of its own, distinct from the partners of which it is composed,
although some exceptions or quasi‑exceptions are acknowledged.4 The
rights and duties of the partnership are the rights and duties of the partners,
and its property is owned by the partners jointly in undivided shares.5
If two or more individuals, in their capacity as partners, enter into an
agreement with another person, the identity of the partners is synonymous
with the identity of the individuals entering into the agreement. Evidence
that they entered into the agreement as partners is merely evidence as
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2. Statutory provisions11
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2.2.2 Insolvency
The definition of “debtor” in section 1 of the Insolvency Act,25 in connection
with the sequestration of the debtor’s estate, includes a partnership or the
estate of a partnership, which is a debtor in the usual sense of the word.
The Insolvency Act treats the partnership as having a separate estate and
as being in the same position as any other debtor.26 It not only retains the
partnership estate as a separate estate from the estates of the individual
partners, but also precludes partnership creditors from preferring their
claims against the individual estates.27 At least initially, partnership
creditors have to look for payment to the partnership estate only.28 The
trustee of the partnership estate is only entitled to the residue, if any, of a
partner’s estate after all the claims of the private creditors of the partner
have been paid in full, if that residue is required to pay the partnership’s
debts.29 Similarly, the trustee of a partner’s estate is entitled to the residue,
if any, in the partnership estate after the claims of partnership creditors
have been paid in full, to the extent that such partner would have been
entitled to it, if his estate had not been sequestrated.30 In accordance
with this arrangement, separate accounts must be framed in the estate
of the partnership as well as that of each individual partner.31 This leads
to the hypothesis that third parties dealing with, and granting credit to a
partnership do so in reliance only on the assets of the partnership, and
that, throughout their dealings with the partnership, they regard it as a
separate entity.32
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Ex parte Fernandez:728.
33 Michalow v Premier Milling:63; Cassim v The Master:606; Ex parte
Fernandez:728; Ex parte Cohen:677; Strydom v Protea Eiendomsagente:209;
Gardee v Dhanmanta Holdings:1071; Ferela v Craigie:169.
34 Michalow v Premier Milling:63.
35 Gardee v Dhanmanta Holdings.
36 Commissioner for SARS v Hawker Air Services: In re Commissioner for
SARS v Hawker Aviation Services Partnership 2006 2 All SA 565 SCA:575;
Commissioner, South African Revenue Services v Hawker Air Services;
Commissioner, South African Revenue Service v Hawker Aviation Partnership
2006 4 SA 292 SCA.
37 A body corporate falls outside the ambit of the definition of a debtor in
section 2 of the Insolvency Act, and its estate cannot be sequestrated under
the Insolvency Act, but can be liquidated pursuant to the provisions of the
Companies Act 71/2008.
38 Insolvency Act 24/1936:sections 124(3)(b), 124(5).
39 Ex parte Fernandez; Ex parte Cohen; Noordkaap Lewendehawe Koöperasie v Raath
1977 2 SA 815 (NC):818.
40 Ex parte Cohen.
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2.3 Person
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61 Da Silva v Pillaty:766.
62 Uniform Rules of Court, it was held in Metlika Trading v Commissioner, South
African Revenue Service 2005 3 SA 1 SCA:13 per Streicher JA.
63 Banks Act 94/1990:section 1.
64 Co‑Operative Banks Act 40/2007:section 1.
65 Mutual Banks Act 124/1993:section 1.
66 Financial Institutions (Protection of Funds) Act 28/2001:section 1.
67 Securities Services Act 36/2004:section 72, repealed and replaced by the
Financial Markets Act 19/2012.
68 Law Society (Cape of Good Hope) Private Act 20/1916:section 17(b).
69 Customs and Excise Act 91/1964:section 103.
70 Private Security Industry Regulation Act 56/2001:section 1.
71 Export Credit and Foreign Investments Insurance Act 78/1957:section 1.
72 Credit Rating Services Act 24/2012:section 1.
73 Financial Markets Act 19/2012:section 1.
74 Financial Advisory and Intermediary Services Act 73/2002:section 1.
75 Gambling Act 7/2004:section 1.
76 Community Schemes Ombud Service Act 9/2011:section 1.
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2.7 Agent
Under the Income Tax Act 58 of 1962,91 “agent” includes a partnership
acting as an agent.
3. In closing
The legislation referred to is by no means intended as a numerus clausus.
There may well be other instances where, for certain purposes, the
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