Abstract

The common-law actio pro socio has become part of the South African law of partnership as the action by which partners’ mutual rights and duties can be enforced. Although it is generally accepted that the actio pro socio can be instituted on the dissolution of the partnership, whether it can also be brought while the partnership still exists is less clear. In an attempt to bring greater clarity on the issue, this contribution defines the position of actio pro socio in South African law, and then takes the reader on a brief chronological journey through the South African case law which has crafted the country’s approach to this remedy. It emerges that the courts’ distinguish between bringing the actio pro socio while the partnership still exists and after its dissolution, and that it is indeed possible to institute the action during the existence of the partnership without automatically signalling its dissolution. This is also confirmed by Roman and Roman-Dutch law. Those instrumental in shaping the country’s law of partnership are therefore urged not to lose sight of the Roman and Roman-Dutch origins of this arm of the law in developing a generally empowering partnership law for South Africa.