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[2014] ZASCA 227
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Van Deventer v Ivory Sun Trading 77 (pty) Ltd ([2015] 1 All SA 55 (SCA); 2015 (3) SA 532 (SCA)) [2014] ZASCA 227; [2014] ZASCA 169 (4 November 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 595/2013
In
the matter between:
CHRISTOFFEL
WESSEL JACOBUS
VAN
DEVENTER
APPELLANT
and
IVORY
SUN TRADING 77 (PTY) LTD
RESPONDENT
Neutral
citation:
Van Deventer v Ivory
Sun Trading 77 (Pty) Ltd
(593/13)
[2014] ZASCA 169
(4 November 2014)
Coram:
Mpati P, Majiedt and Pillay JJA,
Schoeman and Fourie AJJA.
Heard:
3 September 2014
Delivered:
4 November 2014
Summary:
Right of pre-emption established
through a testamentary disposition – not offered to appellant
as holder of right in terms
of conditions registered against title
deed of property – grantor of right failing to first offer
property for sale to appellant
– whether right prescribed
within three years of grantor’s decision to sell or whether
grantor obliged to make written
offer to appellant prior to
commencement of running of prescription – not proved that the
right of pre-emption had prescribed
or that appellant waived his
right of pre-emption.
ORDER
On
appeal from:
The North Gauteng High
Court, Pretoria (Vorster AJ) sitting as court of first instance.
1
The appeal is upheld with costs.
2
The order made by the court below is amended as follows:
(a)
Paragraphs 2, 3 and 7 are set aside.
(b)
Paragraph 6 is set aside and substituted with the following:
‘
(a)
Eerste verweerder word gelas om eiser se koste van die geding te
betaal met uitsondering
van die verspilde koste van die uitstel,
welke koste deur tweede verweerder betaal moet word.
(b)
Eiser word gelas om tweede verweerder se gedingskoste te betaal met
uitsondering van
die verspilde koste van die uitstel voormeld.’
JUDGMENT
Schoeman AJA (Mpati P,
Majiedt and Pillay JJA and Fourie AJA concurring.)
[1] The issue in this
appeal is whether a right of pre-emption, acquired by virtue of a
testamentary disposition and registered
against the title deed of a
farm, prescribed prior to the appellant exercising such right.
The
pleadings
[2] The respondent, Ivory
Sun Trading 77 (Pty) Ltd, issued summons as plaintiff, against Mr J J
van Deventer (Johannes), the first
defendant, and the appellant, as
second defendant, for a declaratory order that a valid agreement of
sale in respect of a farm
existed between the respondent and Johannes
as a result of the exercise of an option on 30 March 2007. The
respondent also sought
ancillary relief relating to the transfer of
the property to him and for payment of a debt. No relief was sought
against the appellant
except for a costs order in the event that he
defended the matter.
[3] The appellant pleaded
that the respondent was not entitled to transfer of the farm as the
appellant had entered into a valid
contract with Johannes pursuant to
a right of pre-emption registered against the title deed of the
property.
[4] The respondent
averred in the particulars of claim that the appellant’s right
of pre-emption had prescribed. The court
a quo upheld this contention
and granted the relief prayed for by the respondent. The appellant
appeals with leave of this court.
Background
[5]
The appellant and his brother, Johannes, were both beneficiaries in
the will of their parents. The farm Dartmouth (the
farm) was
bequeathed to Johannes, while another farm was left to the appellant.
The bequest to Johannes was subject to a life usufruct
in favour of
the surviving testator, their mother, Mrs van Deventer. The
testamentary disposition in respect of the farm contained
a further
condition that Nugent JA,
[1]
in
this court, previously translated as:
‘
If
[Johannes] after the death of the survivor, decides to sell
[Dartmouth] then our son Christoffel [the appellant] . . . must be
given the first option to purchase the said property at the Land Bank
valuation as established at the time of the sale. The option
must be
exercised in writing within a period of 60 (sixty) days after the
option has been given.
’
[2]
This right of pre-emption
was registered against the title deed of the farm in the Deeds
Office.
[6]
The chronology of the common cause events leading to the action
instituted by the respondent is as follows. In September
2003,
during the life of Mrs van Deventer, Johannes granted a written
option to Dr Willem Abraham Cronjé (Cronjé),
or his
nominee, to buy the farm for an amount of R2,4 million, subject to
the conditions and servitudes registered against the
property. In
October 2003 an attorney, Mr Miguel van Niekerk de Bruin (De Bruin),
wrote to the appellant’s attorney,
Dr Van der Westhuizen, on
behalf of Johannes and Cronjé, and informed him that Johannes
had given an option to Cronjé
to purchase the farm and
requested the appellant to waive his right of pre-emption; failing
which the option would be cancelled.
[3]
At that stage the appellant and Johannes had an acrimonious
relationship and did not talk to each other.
[7] In November 2003 the
appellant responded that he elected not to waive his right of
pre-emption and informed De Bruin that, since
Johannes had decided to
sell the farm, the appellant was entitled to a written option to buy
the farm at Land Bank valuation. In
February 2004, the surviving
parent, Mrs van Deventer passed away. In April 2004 Johannes notified
the appellant that he was no
longer interested in selling the
property and undertook to let the appellant know if and when he
changed his mind. When the appellant
raised questions regarding the
option of Cronjé, De Bruin informed the appellant that they
were not obliged to keep the
appellant informed, but that they would
do so in the event of Johannes deciding to dispose of the property.
This was, to the knowledge
of De Bruin, Johannes and Cronjé
false, as Johannes intended to sell the farm to Cronjé and
continued to extend the
option to Cronjé from time to time.
Furthermore, Johannes entered into a new lease agreement with a
trust of which
Cronjé was a trustee, in terms of which
Johannes let the farm to the trust for a period of five years, from 1
October 2004,
with an option to renew the lease for a further four
years and nine months. This lease agreement also granted a right of
pre-emption
to the trust. In my view the inference is unavoidable
that this long-term lease was entered into specifically to make it as
unattractive
as possible for the appellant to exercise his right of
pre-emption.
[8] In the meantime
Johannes offered the farm to the appellant at R600 000 more than
Cronje’s option-price. The appellant,
however, insisted on
buying the farm at Land Bank valuation. When the Land Bank was
requested to value the farm, it refused to
do so on the basis of
internal policy principles.
[9]
In the beginning of 2005 Johannes launched an application for a
declaratory order that the condition requiring him to offer
the farm
to the appellant, at the Land Bank valuation, was invalid, due to the
fact that the condition was impossible to fulfil
as the Land Bank
value could not be determined. The appellant and Cronjé were
the respondents in that application, although
the litigation was
funded by Cronjé. The high court found against Johannes, who
appealed to this court. His appeal was unsuccessful.
[4]
[10] On 29 March 2007 the
respondent, as the nominee of Cronjé, exercised the option to
purchase the farm. De Bruin withdrew
as the attorney of Cronje and
Johannes, due to a conflict of interest. Mr Petrus Gerhardus Uys
(Uys), the respondent’s new
attorney, informed the appellant in
May 2008, 14 months after the event, that the respondent had
exercised the option. He informed
the appellant that they were of the
opinion that Johannes had to give the appellant an option to buy the
property at Land Bank
value and enquired whether that had been done.
Van der Westhuizen informed Uys that the appellant would assist the
respondent
in buying the property, provided that the respondent pay a
market related price of approximately R7,6 million.
[11] In February 2010
Johannes granted a written option to the appellant to buy the farm at
the Land Bank value. Subsequently the
appellant and Johannes entered
into an agreement of sale on 25 March 2010.
The issues
[12] The first issue to
be determined in this appeal is the true meaning of the right of
pre-emption that has been registered against
the title deed of the
farm and the nature of such a right. A further issue for
determination is whether the obligation of Johannes
to offer the farm
to the appellant is a debt susceptible to prescription, and if so,
whether it had prescribed.
The interpretation of
the clause
[13]
Counsel for the respondent argued that the only possible
interpretation of the clause is that as soon as Johannes decided to
sell, the right of pre-emption came into force. From that date the
appellant was entitled and indeed obliged, if he wanted to exercise
his right of pre-emption, to enforce his right. This he could do by
either instituting action for specific performance, bringing
an
application for a declaratory order, or by interdicting Johannes from
entering into a contract and transferring the farm to
Cronjé
or his nominee. Prescription would commence running from that
date, so it was contended
[14]
The clause must be interpreted according to the law relating to the
interpretation of contracts and documents. In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[5]
Wallis JA said the following:
‘
The present state
of the law can be expressed as follows: Interpretation is the process
of attributing meaning to the words used
in a document, be it
legislation, some other statutory instrument, or contract, having
regard to the context provided by reading
the particular provision or
provisions in the light of the document as a whole and the
circumstances attendant upon its coming
into existence. Whatever the
nature of the document, consideration must be given to the
language used in the light of the
ordinary rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed
and the material known to those
responsible for its production. Where more than one meaning is
possible each possibility must be
weighed in the light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred
to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose of the document.’
Therefore,
it is necessary to objectively determine whether the clause required
Johannes to grant the appellant a written option
before the appellant
could exercise his right of pre-emption or whether the right could be
enforced immediately upon the appellant
acquiring knowledge of
Johannes’ decision to sell the farm.
The
nature of the right
[15]
The right of pre-emption is a personal right that is not converted
into a real right through registration in the Deeds Office,
but the
registration against the title deed of the property has certain
practical consequences. In the title on ‘Things’,
[6]
C G van der Merwe stated:
‘
First,
the registrar of deeds will be reluctant to perform an act of
registration inconsistent with such a registered personal right.
If a
right of pre-emption has for instance been registered against the
title deeds of the land, the registrar will not allow transfer
to any
person other then the pre-emptor unless the written consent of the
latter has been supplied to him. Second, third parties
will more
readily have actual knowledge of the existence of the personal right
once it has been registered. The doctrine of notice
will thus in
appropriate circumstances prevent a third party from establishing a
real right in respect of such land.’
[16]
In matters where the right of pre-emption was not registered, but
third parties had knowledge of such a right, it has been
described as
a personal right with ‘saaklike werking’,
[7]
in other words, that it had the effect of a real right. The
position would be the same where a right of pre-emption had been
registered against the title deed of a property.
[17]
The right of pre-emption in the instant matter is not a
pactum
de contrahendo
,
which has been described as 'an agreement to make a contract in the
future',
[8]
as it has been
regulated through a testamentary disposition.
A
debt that is due.
[18]
The respondent’s case was that the claim of the appellant had
prescribed, in that three years has passed since Johannes’
decision to sell the farm came to the appellant’s notice in
terms of the provisions of s 11(
d
) of the Prescription Act 68
of 1969 (the Act). Section 12(1) of the Act provides that subject to
subsections (2), (3) and (4) (which
do not affect the present case)
'. . . prescription shall commence to run as soon as the debt is
due'.
[19]
The respondent’s counsel referred us to the case of
Dithaba
Platinum (Pty) Ltd v Erconovaal Ltd & another
[9]
as an example and authority for the submission that a right of
pre-emption may prescribe, in other words, that Johannes’
obligation was a debt. The facts of
Dithaba
differ
materially from the facts of the instant matter. In
Dithaba
the
right of pre-emption was contained in a contract and it was the
grantor that raised prescription vis-à-vis the grantee
after
the grantor had sold and transferred mineral rights to another
entity. The court held that the right of pre-emption
had
prescribed due to the fact that the wording of s 12(3) of the Act, as
it was at the time, precluded the interruption of prescription.
It is
the party relying on prescription that has to allege and prove the
date of the inception of the period of prescription.
[10]
[20]
I will accept, without deciding, that the obligation of Johannes to
perform in terms of the appellant’s right of pre-emption
constituted a debt. It must then be determined when such debt became
due.
[21]
In
Umgeni
Water v Mshengu
[11]
Ponnan
JA set out the position in determining whether a debt is due:
‘
.
. . According to s 12(1) of the Act, prescription shall commence to
run “as soon as the debt is due”. The words “debt
is due” must be given their ordinary meaning.
[
The
Master v IL Back & Co Ltd
1983
(1) SA 986
(A) at 1004F.]
In
its ordinary meaning a debt is due when it is immediately claimable
by the creditor and, as its correlative, it is immediately
payable by
the debtor. Stated another way, the debt must be one in respect of
which the debtor is under an obligation to pay immediately
[See
Western
Bank Ltd v SJJ van Vuuren Transport (Pty) Ltd & others
1980
(2) SA 348
(T) at 351 and
HMBMP
Properties (Pty) Ltd v King
1981
(1) SA 906
(N) at 909 and the cases there cited.].
[6] A
debt can only be said to be claimable immediately if a creditor has
the right to institute an action for its recovery. In
order to be
able to institute an action for the recovery of a debt a creditor
must have a complete cause of action in respect of
it. The expression
“cause of action” has been held to mean: “every
fact which it would be necessary for the plaintiff
to prove, . . . in
order to support his right to judgment of the Court. It does not
comprise every piece of evidence which is necessary
to prove each
fact, but every fact which is necessary to be proved”; or
slightly differently stated
“
the
entire set of facts which give rise to an enforceable claim and
includes every fact which is material to be proved to entitle
a
plaintiff to succeed in his claim. It includes all that a plaintiff
must set out in his declaration in order to disclose a cause
of
action. Such cause of action does not ‘arise’ or ‘accrue’
until the occurrence of the last of such facts
and consequently the
last of such facts is sometimes loosely spoken of as the cause of
action.
[
Evins
v Shield Insurance Co Ltd
1980 (2) SA
814
(A) at 838 and the cases there cited by Corbett JA; see also
Truter & another v Deysel
[2006] ZASCA 16
;
2006
(4) SA 168
(SCA) paras 16, 18 and 19.]’
[22]
The respondent argued that the appellant’s right of pre-emption
was triggered by the decision of Johannes to grant Cronjé
an
option to buy the farm in October 2003, which was communicated to the
appellant in November 2003. The right therefore, so the
argument
went, prescribed in November 2006.
[Para
24 deleted]
[23]
To determine whether the debt was due, the appellant had to have a
complete cause of action in respect of such debt. This means,
according to
Umgeni Water
and the cases cited therein, that
every fact necessary to prove and support the appellant’s right
to judgment had to exist
for the appellant to be able to institute
action for specific performance.
Interruption
of prescription
[24]
Section 15(1) and (6) of the Act provide:
'
Judicial interruption
of prescription
(1) The running of
prescription shall, subject to the provisions of subsection (2), be
interrupted by the service on the debtor
of any process whereby the
creditor claims payment of the debt.
. . .
(6) For the purposes of
this section, “process” includes a petition, a notice of
motion, a rule
nisi
, a pleading in reconvention, a third party
notice referred to in any rule of court, and any document whereby
legal proceedings
are commenced.'
[25]
According to the respondent the appellant could have prevented the
running of prescription by an interdict, a declaratory order
or an
action for specific performance. I will discuss the proposed remedies
to determine if the mentioned remedies would have interrupted
prescription.
Interdict
[26]
The requirements for the granting of a final interdict are trite. The
appellant would have had to establish (a) a clear right
(b) unlawful
interference with that right, actually committed or reasonably
apprehended and (c) the absence of any other satisfactory
remedy.
[12]
[27]
In the instant matter the appellant would not have been able to prove
that there was an injury committed or reasonably apprehended.
Injury in this sense means an infringement of the appellant’s
right and the resultant prejudice.
[13]
The correspondence between at first, De Bruin, and then Uys and the
appellant’s attorney, made it clear that the appellant’s
right that had been registered against the title deed was recognised
and the constant refrain was that the appellant must either
waive
such right or that Johannes was obliged to submit a written offer to
the appellant. Uys wrote a letter in this vein to the
appellant as
late as August 2008, a date when the right of pre-emption, according
to the respondent, had already prescribed.
[28]
The appellant could therefore not have successfully applied for an
interdict as he would not have been able to prove unlawful
interference with his right to purchase the property. His right
was protected by the fact that it was registered against
the title
deed of the farm and he could not have suffered any prejudice.
[29]
Furthermore, an application to interdict Johannes from transferring
the farm to the respondent would have been a process served
on the
debtor, but I am of the view that it would not be a means ‘whereby
the creditor claims payment of the debt’,
even if such an
application could have been successful. An interdict would have
prevented Johannes from transferring the farm to
the respondent, but
would not have advanced the transfer of the farm to the appellant in
any way.
Declaratory
order
[30]
It is clear from the previous proceedings and all the correspondence
between the parties that there was no dispute between
the parties
that the appellant had a registered right of pre-emption. There could
have been no doubt as to the existence of such
right especially where
this court, in November 2006, pronounced that the right of
pre-emption was valid.
[31]
Although an existing dispute is not a prerequisite for the granting
of a declaratory order, there are two steps that must be
investigated
before a declaratory order can be granted. These are: firstly, that
the applicant has an interest in any existing,
future or contingent
right or obligation and secondly, if such interest exists, whether an
order would be appropriate.
[14]
However, if no dispute exists, a court might refuse to exercise its
discretion in favour of an applicant.
[15]
[32]
In this instance a declaratory order was granted confirming the
validity of the pre-emption clause that was taken on appeal,
during
the time the respondent avers prescription was running against the
appellant. I am of the view that no court would have
granted an
application for a declaratory order during the time when the same
clause was registered against the title deed and was
the subject of
an appeal to this court.
[33]
In
Cape
Town Municipality & another v Allianz Insurance Co Ltd
[16]
two
actions were consolidated and each plaintiff claimed an order
declaring
Allianz
liable to indemnify the plaintiffs
against all loss or damage suffered as a result of two storms. The
issue was whether service
of a process claiming a declaratory order
that the debtor was liable to indemnify it, rather than a claim for
payment of a debt,
interrupted the running of prescription. Howie J
stated (at 334H – I):
'1. It
is sufficient for the purposes of interrupting prescription if the
process to be served is one whereby the
proceedings begun thereunder
are instituted as a step in the enforcement of a claim for payment of
the debt.
2. A
creditor prosecutes his claim under that process to final, executable
judgment, not only when the process
and the judgment constitute the
beginning and end of the same action, but also where the process
initiates an action, judgment
in which finally disposes of some
elements of the claim, and where the remaining elements are
disposed of in a supplementary
action instituted pursuant to and
dependent upon that judgment.'
[34]
In
Peter
Taylor & Associates v Bell Estates (Pty) Ltd
[17]
Tshiqi JA analysed
Allianz
when
discussing the effect of an application to join a party on the
interruption of prescription. She stated (para14):
‘
[14] Howie J gave
three further reasons why his view was consistent with the purpose
underpinning the
Prescription Act. The
first was that there was no
basis for an inference that the plaintiffs' actions for the
declarators were intended to be no more
than a means of obtaining an
“advisory opinion”. Rather, he said, the actions were
“instituted as steps in the
enforcement of [the plaintiffs']
rights to an indemnity, that is to say, with the eventual object to
get defendant to implement
the indemnity”, and not “as
‘foot in the door’ manoeuvres to keep prescription at
bay”. Secondly,
the plaintiffs' cause of action “is
the self-same cause of action as that which would found any
subsequent related litigation
aimed specifically at obtaining an
order for payment of money”.’
[35]
The respondent submitted that the appellant should have instituted an
action for a declaratory order to interrupt prescription,
but it is
clear that the sole purpose would have been as ‘foot in the
door manoeuvres to keep prescription at bay’.
For his right was
spelt out in the
caveat
and there was no dispute regarding the
appellant’s right; the sole purpose for a declaratory order
would have been to interrupt
prescription and not as a necessary step
in acquiring the farm. I am of the view that in the
circumstances of this
case, even if successful, a claim for a
declaratory order would not have interrupted prescription.
Specific
performance
[36]
In
Hirschowitz
[18]
Corbett JA said the following with regard to the exercise of a right
of pre-emption and specific performance:
‘
It
seems to me that in order that the holder of a right of pre-emption
over land should be entitled, on his right maturing and on
the
grantor failing to recognise or honour his right, to claim specific
performance against the grantor (assuming that [h]e has
such a
right),
the
right of pre-emption itself should comply with the Formalities Act.
Were this not so, the anomalous situation would arise that on the
strength of a verbal contract the grantee of the right of pre-emption
could, on the happening of the relevant contingencies, become
the purchaser of land. This would be contrary to the intention
and
objects of the Formalities Act.’ (My emphasis.)
[37]
Specific performance can only be ordered if the holder of such right
had been presented with a written offer which had then
been accepted.
According to the wording of the right as contained in the title deed
and its context, it is clear, viewed objectively,
that an option had
to be given which complied with the formalities as prescribed in s
2(1) of
Alienation of Land Act 68 of 1981
. If such an offer was not
presented the appellant would not have been able to exercise his
right, or claim specific performance.
[38]
Therefore, the appellant did not have a complete cause of action for
specific performance as Johannes did not make a written
offer to the
appellant to exercise his right of pre-emption.
[39]
In the premise I am of the view that the respondent failed to show
that there was a trigger event that initiated the running
of
prescription. The trigger event according to the wording of the
clause would be the granting of a written option and in that
event,
the right to purchase, if not exercised, would lapse in sixty days.
[40]
The respondent also raised the appellant’s alleged waiver of
his right and estoppel as reasons why the appellant’s
right of
pre-emption had lapsed. The trial court did not deal with these
aspects as it held that the appellant’s right
had prescribed.
It is therefore incumbent upon this court to deal therewith.
Waiver
[41]
In order to succeed with waiver, the respondent had to prove that the
appellant decided to abandon his right, with full knowledge
of such
right and that his decision was conveyed to the respondent. In
Meintjes
NO v Coetzer & others
[19]
Leach JA said the following with regard to waiver:
‘
In order to
succeed, the first and second defendants were obliged to show that
the deceased, with full knowledge of her right to
reclaim the two
portions of the farm (or, put differently, her rights of the
ownership in those portions), decided to abandon such
claim, whether
expressly or by her conduct. As was observed by Innes CJ more than
three-quarters of a century ago, an observation
which remains as
valid today as it did then, a waiver is a question of fact which is
always difficult to establish. (
Laws
v Rutherfurd
1924 AD 261
at 263.)’
[42]
In
Traub
v Barclays National Bank Ltd; Kalk v Barclays National Bank Ltd
[20]
Botha JA said:
‘
It is clear, in my
opinion, that a creditor's intention not to enforce a right has no
legal effect unless and until there is some
expression or
manifestation of it which is communicated to the debtor or in some
way brought to his knowledge.’
[43]
In this instance the respondent’s attorneys were fully aware
that the appellant had not abandoned his right of pre-emption.
Both
De Bruin and Uys testified that they were aware that the appellant’s
contention was that the farm had to be offered
to him in writing at
Land Bank value. He did not deviate from this viewpoint. No
evidence was presented that the appellant
in any way manifested a
stance that he had abandoned his right or that he was not going to
exercise that right. I am of the view
that the respondent failed to
prove that the appellant waived his right.
Estoppel
[44]
Estoppel by representation would mean that the appellant was
estopped, or barred, from denying the truth of a representation
by
conduct made by him to the respondent, while the respondent,
believing in the truth of the representation, which belief was
reasonable, acted on it to his detriment.
[21]
[45]
In
Concor
Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter
[22]
the requirements for establishing estoppel were stated thus:
‘
Our law is that a
person may be bound by a representation constituted by conduct if the
representor should reasonably have expected
that the representee
might be misled by his conduct and if in addition the
representee acted reasonably in construing the
representation in the
sense in which the representee did so.’
[46]
If the averments and the evidence led on behalf of the respondent are
tested against the requirements for estoppel, it is clear
that the
reliance on estoppel is misplaced. The evidence of both the
attorneys of the respondent was clear: the appellant
insisted on a
written option before he would exercise his right of pre-emption. It
was clear that the trust of which Cronjé
was a trustee and
Johannes deliberately entered into a long-term lease, with the option
to renew such lease, with the intention
of making it as unattractive
as possible to the appellant to exercise his right of pre-emption.
Neither Cronjé, nor the
respondent presented evidence that
indicated that they were in any way prejudiced by the conduct of the
appellant. He was entitled
to insist on a written option.
[47]
It follows that the appeal has to succeed. The order of the court
below also dealt with other aspects that are not related
to the
lis
between the appellant and the respondent. Such orders will
remain.
[48]
The following order is made:
1
The appeal is upheld with costs.
2
The order made by the court below is amended as follows:
(a)
Paragraphs 2, 3 and 7 are set aside.
(b)
Paragraph 6 is set aside and substituted with the following:
‘
(a)
Eerste verweerder word gelas om eiser se koste van die geding te
betaal met uitsondering
van die verspilde koste van die uitstel,
welke koste deur tweede verweerder betaal moet word.
(b)
Eiser word gelas om tweede verweerder se gedingskoste te betaal met
uitsondering van
die verspilde koste van die uitstel voormeld.’
__________________________
I
Schoeman
Acting
Judge of Appeal
APPEARANCES
For
Appellant:
PA van Niekerk SC
Instructed by:
Dr Hardus van der
Westhuizen Inc, c/o Johann de Wet Attorneys, Pretoria
Symington & De Kok,
Bloemfontein
For
Respondent:
BC vd Heever SC
Instructed by:
De Klerks Attorneys, c/o
Couzyn Hertzog & Horak Attorneys, Pretoria
Phatshoane Henney Inc,
Bloemfontein
[1]
Van
Deventer v Van Deventer
[2006]
SCA 144 (RSA) para 1.
[2]
The original Afrikaans condition reads: 'Indien ons gesegde
seun, na die afsterwe van die langslewende van ons sou besluit
om
ons voormelde plaaseiendom te verkoop sal ons seun CHRISTOFFEL
WESSEL JACOBUS VAN DEVENTER die eerste opsie gegee word om
die
gemelde eiendom te koop teen die Landbank waardasie soos vasgestel
ten tye van sodanige verkoping. Die opsie moet skriftelik,
binne 'n
periode van 60 (sestig) dae nadat sodanige opsie gegee is,
uitgeoefen word.'
[3]
All the correspondence was done between the parties’ attorneys
and I will refer to the attorneys only when relevant.
[4]
Supra fn 1.
[5]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA)
para 18.
[6]
‘Things’, 27
Lawsa
2 ed para 69.
[7]
Associated
South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien
(Pty) Ltd
1982
(3) SA 893
(A)
.
[8]
Hirschowitz
v Moolman & others
1985
(3) SA 739
(A) at 765.
[9]
Dithaba
Platinum (Pty) Ltd v Erconovaal Ltd & another
1985 (4) SA 615
(T) at
630D and further.
[10]
Gericke
v Sack
1978
(1) SA 821
(A)
at 827H--828A.
[11]
Umgeni
Water v Mshengu
[2010]
2 All SA 505
(SCA)
para
5-6.
[12]
Setlogelo
v Setlogelo
1914
AD 221
at 227.
[13]
V &
A Waterfront Properties (Pty) Ltd v Helicopter and Marine Services
(Pty) Ltd
2006
(1) 252 (SCA) para 21.
[14]
Ex
parte Nell
1963
(1) SA 754
(A) at 759A-B.
[15]
Nell
at
760A-B.
[16]
Cape
Town Municipality & another v Allianz Insurance Co Ltd
1990
(1) SA 311 (C)
.
[17]
Peter
Taylor & Associates v Bell Estates (Pty) Ltd
2014 (2) SA 312 (SCA).
[18]
Fn 8 supra at 767F-I.
[19]
Meintjes
NO v Coetzer & others
2010
(5) SA 186
(SCA) para 24.
[20]
Traub v
Barclays National Bank Ltd; Kalk v Barclays National Bank Ltd
1983
(3) SA 619
(A)
at
634H.
[21]
South
African Broadcasting Corporation v Coop & others
2006 (2) SA 217
(SCA)
para 64.
[22]
Concor
Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter
2004
(6) SA 491
(SCA) para 7.