Jacobs N.O and Others v Salut La Vie Estate (Pty) Ltd (1146/2016) [2017] ZANCHC 11 (10 February 2017)

78 Reportability
Contract Law
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Brief Summary

Contract — Validity of agreements — Exception raised against particulars of claim — Plaintiff sought declaratory relief regarding the validity of an addendum and retransfer of property — Defendants contended that the addendum was void due to lack of proper authorization from all trustees of the Pamperlang Trust — Court held that the exception was valid as the underlying agreement did not comply with the requirements of the Alienation of Land Act, rendering the addendum and subsequent transfer of property void.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter concerned an exception taken to particulars of claim in an action in the High Court of South Africa, Northern Cape Division, Kimberley. The judgment was delivered by Erasmus AJ on 10 February 2017, following argument heard on 2 December 2016.


The plaintiff in the action was Salut La Vie Estate (Pty) Ltd (“Salut la Vie”). The first to third defendants were cited in their capacities as trustees (N.B. Jacobs N.O., C.J. Kirstein N.O., and L. Jacobs N.O.) and were also the excipients in the exception proceedings. Additional defendants were joined in the main action (including the Surveyor-General, Registrar of Deeds, the Minister responsible for agricultural subdivision consent, and others), but the exception was directed at the plaintiff’s pleaded case against the trustees.


The procedural posture was that Salut la Vie instituted action seeking, principally, declaratory relief that an alleged addendum to a land transaction was null and void, together with retransfer of immovable property (or portions/lots) and related relief under the Alienation of Land Act 68 of 1981. The trustees excepted to the main cause of action, contending that the pleaded allegations did not disclose a cause of action for retransfer of the property where transfer had already taken place, particularly in light of the abstract theory of transfer applicable to immovable property.


The general subject matter of the dispute was the legal effect of an addendum concerning the transfer and retransfer of immovable property (agricultural land) where the addendum was allegedly invalid for want of compliance with statutory formalities and because it was signed by only two of three trustees, and where the transferee trust allegedly did not perform fully in terms of that addendum.


2. Material Facts


It was common cause for purposes of the exception that Salut la Vie and the Pamperlang Trust (represented by its three appointed trustees) concluded an initial agreement of sale in respect of certain lots forming part of immovable property that was still to be subdivided.


It was further common cause that Salut la Vie and the Trust purported to conclude a further agreement described as an addendum, but that only two of the three trustees signed this addendum. It was also accepted (for purposes of the exception) that the addendum did not comply with section 2 of the Alienation of Land Act 68 of 1981.


The property was accepted to be agricultural land, with the consequence that subdivision required consent under the Subdivision of Agricultural Land Act 70 of 1970. It was recorded in the addendum that transfer of certain lots had not occurred because the Registrar of Deeds had insisted on proof of the Department of Agriculture’s consent to the subdivision.


The pleaded case (read with the matters treated as common cause for the exception) was that the parties then purportedly agreed that the entire property would be transferred into the Trust’s name for the same purchase price stated in the main agreement, with an obligation on the Trust to transfer back to Salut la Vie the portion of the property that had not formed part of the original intended object of purchase, on demand and at no consideration.


Transfer of the property into the Trust’s name was effected in the Deeds Registry on or about 26 May 2010.


A material pleaded allegation, accepted as true for exception purposes, was that the Trust (as alienee/transferee) had not fully complied with its obligations under the addendum, because it had not retransferred certain specified lots back to Salut la Vie despite demand (or summons constituting demand).


3. Legal Issues


The central issue was whether the plaintiff’s particulars of claim (particularly paragraphs 19 to 24) disclosed a cause of action against the trustees for the relief claimed, notwithstanding that transfer of ownership had been registered in the Deeds Office.


This raised a dispute primarily concerning the application of legal principles to pleaded facts, namely the interaction between the abstract theory of transfer in South African property law and the statutory regime governing formal defects in alienations of land under the Alienation of Land Act 68 of 1981, especially sections 2(1) and 28.


A further legal question arose as to whether the alleged defect—signature by only two trustees—implicated not only statutory non-compliance but also whether the Trust could have formed the requisite intention and consensus to enter into the transaction, including the “real agreement” (in the property-law sense), given trust law principles requiring trustees to act jointly.


Procedurally, the court had to determine whether, on every reasonable interpretation of the particulars of claim, they disclosed no cause of action, which is the standard applicable to an exception aimed at the legal sufficiency of pleadings.


4. Court’s Reasoning


The court began by restating foundational principles applicable to exceptions. A plaintiff must plead the material facts necessary to sustain the right to judgment, but need not plead the evidence by which those facts will be proved. An exception is intended to obtain a prompt decision on legal questions apparent from the pleadings, and an excipient must make out a clear and strong case to succeed. The court emphasised that, in exception proceedings, pleaded facts must be taken as established, and that the excipient bears the burden of showing that upon every reasonable interpretation no cause of action is disclosed. The court also cautioned against an over-technical, piecemeal approach to the pleadings.


Against that backdrop, the excipients’ essential submission was that the abstract theory of transfer applies to the transfer of immovable property: ownership passes by registration coupled with a valid real agreement (intention to transfer and receive ownership). On this approach, a defect in the underlying contract (such as non-compliance with statutory formalities) would not necessarily invalidate the transfer of ownership, and therefore the plaintiff could not simply rely on the invalidity of the addendum to claim retransfer.


The court accepted that the abstract theory and the requirements for passing ownership (registration plus a real agreement) are part of South African law, and that defects in the underlying causa do not automatically undo a transfer. However, it held that the matter could not be decided at the exception stage on the narrow basis advanced by the excipients, because the pleadings contained further allegations that materially distinguished the case from the authorities relied upon by the excipients.


In particular, the court regarded it as significant—because it had to be accepted as true for exception purposes—that the Trust had not performed fully in terms of the addendum (specifically, it had not retransferred the lots). The excipients’ argument was criticised for focusing on selected paragraphs while not addressing the pleaded non-performance in paragraphs 22 and 23. Those allegations, on the court’s approach, were integral to whether the plaintiff might rely on statutory consequences under the Alienation of Land Act.


The court then considered the statutory scheme. It treated the absence of the third trustee’s signature as a formal defect in the alienation and therefore non-compliance with section 2(1) of the Alienation of Land Act. The court referred to section 28, which regulates the consequences of alienations that are void for non-compliance with section 2(1) and draws a distinction between partial performance (section 28(1)) and the situation where the alienee has performed in full and transfer has occurred (section 28(2)).


On the pleadings, the plaintiff alleged partial performance by itself and non-performance in full by the Trust. The court accepted that, on at least one viable interpretation of section 28 for purposes of exception, a party who has performed partially or in full under an alienation that is of no force or effect may recover what it has performed, and that the statutory bar to setting aside (by deeming validity ab initio) may arise only where the alienee has performed in full and transfer has taken place as contemplated by section 28(2). Since the plaintiff’s pleaded case was that the Trust had not performed fully, the court held it could not be concluded at the exception stage that section 28(2) necessarily operated to validate the transaction ab initio so as to defeat the plaintiff’s claim.


The court also addressed the argument that the “real agreement” remained valid notwithstanding invalidity of the underlying addendum. It recorded the plaintiff’s contention (though not explicitly pleaded in those terms) that the absence of the third trustee’s signature was not merely a formal defect, but went to whether the Trust could be bound at all, and therefore whether there was consensus and the necessary intention for a real agreement. In this context, the court referred to Land and Agricultural Bank of South Africa v Parker and Others, noting the principle that a trust is bound only where trustees act jointly; absent joint action, an agreement “whether real or otherwise” cannot come into existence. Although the particulars of claim did not expressly plead lack of consensus in relation to the real agreement, the court considered that evidence relevant to this issue could be led at trial, and it was not persuaded that no evidence could support a cause of action based on absence of consensus.


Synthesising these points, the court concluded that, when the impugned paragraphs were read together with the remainder of the particulars of claim and annexures, it could not be found that on every reasonable interpretation no cause of action was disclosed. The court further observed that even if the exception were upheld, it would not avoid the leading of evidence, since the evidence needed for the impugned claim would overlap with the remainder of the claims in the action. The exception was therefore dismissed.


On costs, the court applied the ordinary principle that costs follow the event. It found no basis to deviate from that position and held that the briefing of two counsel by the plaintiff in the exception was justified given the importance and complexity of the matter.


5. Outcome and Relief


The exception raised by the first, second and third defendants was dismissed.


The first, second and third defendants were ordered to pay the costs of the exception, including the costs of two counsel, jointly and severally, the one paying the other to be absolved.


Cases Cited


McKenzie v Farmers Co-operative Meat Industries Ltd 1922 AD 16.


Blue Chip 2 (Pty) Ltd v Ryneveldt (499/15) [2016] ZASCA 98.


Colonial Industries Ltd v Provincial Insurance Co Ltd 1920 CPD 627.


AB Ventures Limited v Siemens Ltd 2011 (4) SA 614 (SCA).


Lewis v Oneanate (Pty) Ltd [1992] ZASCA 174; 1992 (4) SA 811 (AD).


South African National Parks v Ras 2002 (2) SA 537 (C).


Kriel v Terblanche NO en Andere 2002 (6) SA 132 (NC).


Du Plessis v Prophitius & Another 2010 (1) SA 49 (SCA).


Oriental Products (Pty) Ltd v Petma 178 Investments Trading (Pty) Ltd and Others 2011 (2) SA 508 (SCA).


Legator McKenna Inc and Another v Shea and Others [2009] All SA 45 (SCA).


Thorpe and Others v Trittenwein and Another 2007 (2) SA 172 (SCA).


Land and Agricultural Bank of South Africa v Parker and Others 2005 (2) SA 77 (SCA).


McKelvey v Cowan NO 1984 (4) SA 525 (Z).


Barclays National Bank Ltd v Thompson 1989 (1) SA 547 (A).


Legislation Cited


Alienation of Land Act 68 of 1981, particularly section 2(1) and section 28(1)–(2).


Subdivision of Agricultural Land Act 70 of 1970.


Trust Property Control Act 57 of 1998 (as cited in the particulars of claim and quoted in the judgment).


Rules of Court Cited


No specific rules of court were cited in the judgment.


Held


The court held that, applying the principles governing exceptions, the excipients failed to establish that the particulars of claim disclosed no cause of action on every reasonable interpretation.


It held that the pleaded allegations that the addendum was invalid for failure to comply with statutory formalities, together with the pleaded allegation that the Trust had not performed fully under the addendum, meant that the plaintiff’s claim could potentially fall within the remedial structure of section 28 of the Alienation of Land Act and could not be rejected on exception.


The court further held that, given trust law principles requiring joint action by trustees, and the pleaded absence of one trustee’s signature, it could not be concluded at the exception stage that no evidence could be led to show lack of consensus relevant to the existence of a valid real agreement.


The exception was therefore dismissed with costs, including costs of two counsel.


LEGAL PRINCIPLES


The judgment applied the principle that an exception tests the legal sufficiency of pleadings and must be determined on the basis that the facts pleaded are true. An excipient bears the burden to show that on every reasonable interpretation of the pleading, it discloses no cause of action, and courts should avoid an over-technical or piecemeal reading of pleadings.


The judgment applied the principle that, while the abstract theory of transfer recognises that ownership of immovable property passes through registration together with a real agreement (intention to transfer and receive ownership), disputes about the effect of an invalid underlying contract cannot necessarily be resolved on exception where the pleadings support additional statutory and factual avenues of relief.


The judgment applied section 2(1) of the Alienation of Land Act 68 of 1981 as governing formal validity of deeds of alienation, and treated a failure of proper signature on behalf of a trust as capable of constituting non-compliance. It applied section 28 as the statutory mechanism addressing consequences of void alienations and distinguished, at least for exception purposes, between cases where an alienee has performed in full (potentially triggering validation under section 28(2)) and cases where full performance by the alienee is not alleged.


The judgment applied trust-law principles (with reference to Land and Agricultural Bank of South Africa v Parker and Others 2005 (2) SA 77 (SCA)) that a trust is bound only where trustees act jointly, and accepted that absence of joint action may bear on whether there was consensus and potentially on whether a real agreement could validly exist, making the matter unsuitable for disposal by exception on the pleadings as framed.

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[2017] ZANCHC 11
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Jacobs N.O and Others v Salut La Vie Estate (Pty) Ltd (1146/2016) [2017] ZANCHC 11 (10 February 2017)

IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number:
1146
/ 2016
Datum
aangehoor / Date Heard:
02
/ 12 / 2016
Datum
gelewer/Date delivered:
10
/ 02 / 2017
In
the exception of:
NICOLAAS
BURGER JACOBS N.O.
First
Excipient
CHRISTIAAN
JACOBUS KIRSTEIN N.O.
Second
Excipient
LEZMARI
JACOBS N.O.
Third
Excipient
and
SALUT
LA VIE ESTATE (PTY) LTD
Respondent
In
re
the matter of:
SALUT
LA VIE ESATE (PTY) LTD
Plaintiff
and
NICOLAAS
BURGER JACOBS N.O.
First
Defendant
CHRISTIAAN
JACOBUS KIRSTEIN N.O.
Second
Defendant
LEZMARI
JACOBS N.O.
Third
Defendant
SURVEY-GENERAL
Fourth
Defendant
REGISTRAR
OF DEEDS: KIMBERLEYY
Fifth
Defendant
MINISTER
OF AGRICULTURE, FISHERIES
AND
FORESTRY
Sixth
Defendant
GRIEKWALAND
WES KORPORATIEF
Seventh
Defendant
STANDARD
BANK OF SA LIMITED
Eighth
Defendant
Coram
:
Erasmus, AJ
JUDGMENT:  EXCEPTION
ERASMUS,
AJ
[1] The plaintiff
(“Salut la Vie”), instituted action seeking
1.1
a declarator that an addendum, annexure POC4 to the particulars of
claim (“the addendum”), signed by the representative
of
the plaintiff and two of the three appointed trustees of the
Pamperlang Trust (“the Trust”) be declared null and
void
and of no force and effect,
1.2
that Portion 47, a portion of portion 1, Rietriviernedersetting Wes
(“the property”) be retransferred into the name
of Salut
la Vie against payment of the amount of R14,540,000.00 plus Value
Added Tax by Salut la Vie,
1.3
that Salut la Vie be ordered to pay interest to the trust, in terms
of the provisions of section 28(1)(a) of the
Alienation of Land Act,
No 68 of 1981 (“the Act”),
1.4
a declarator whereby the agreement, annexure POC3 to the particulars
of claim (“the agreement of sale”),
be declared null and
void and of no force and effect, and
1.5
in the alternative, should it be found that the addendum and main
agreement are valid and of full force and effect, that
certain lots
be transferred into Salut la Vie’s name, and further
1.6
in the event of Salut la Vie succeeding with its main claim, payment
of a certain amount and interest thereon in terms
of section
28(1)(b)(i) of the Act, as reasonable compensation for the
occupation, use or enjoyment of the property and certain
lots.
[2]
The first, second and third defendants (“the excipients”)
noted an exception in respect of the main cause of action
on the
basis that the allegations do not support a cause of action against
the excipients for the retransfer of the property on
the basis of a
void underlying agreement.  The exception is specifically
directed at the contents of paragraphs 19 to 24 of
the particulars of
claim, which read as follows:
“
19.
The addendum, annexed hereunto as annexure “
POC4”
is null and void, for the following reasons:
19.1
The purported Addendum has been signed only by one AL Kluge and NB
Jacobs;
19.2
At the time the duly appointed trustees of the Pamperlang Trust were:
19.2.1
L Kritzinger;
19.2.2
AO Kluge; and
19.2.3
NB Jacobs.
19.3
Because all the appointed trustees appointed in terms of section 6 of
the Trust Property Control Act, 57 of 1998, did
not append their
signatures to the purported Addendum, the Pamperlang Trust was not
properly represented and the signatories not
properly authorised to
act on behalf of the Pamperlang Trust;
19.4
The Addendum does not comply with the provisions of
Section 2(1)
of
the
Alienation of Land Act, 68 of 1981
because the Deed of Alienation
has not been signed properly on behalf of the Pamperlang Trust.
20.
The purported addendum is therefore null and void and of no force or
effect.
21.
The transfer of portion 47 was given into the name of the Pamperlang
Trust, on the strength of and by virtue of the purported
addendum,
which is null and void and of no force and effect;
22.
The Pamperlang Trust did not fully comply with its obligations in
terms of the purported addendum in that:
22.1
In terms of clause 1, the Pamperlang Trust was under the obligation
to retransfer in the Plaintiff’s name those
lots not forming
part of the object of the purchase, but being part and parcel of
Portion 47;
22.2
The Lots that should have been transferred to the plaintiff are:
22.2.1
…;
22.2.5
….
23.
Notwithstanding demand, alternatively this summons constitutes
demand, the Pamperlang Trust has failed to retransfer into
the
plaintiff’s name, the aforementioned lots.
24.
Because Portion 47 was transferred to the Pamperlang Trust on the
strength of the addendum which is null and void and
of no force and
effect:
24.1
the Plaintiff is entitled to a Declaratory Order whereby it is
declared that the Addendum is null and void and of no
force and
effect;
24.2
that an order be made whereby the fourth defendant is ordered,
against submission of all required documentation and payment
of any
fees, to retransfer Portion 47, a Portion of Portion 1,
Rietriviernedersetting Wes, Northern Cape Province, in extent
1851,1063
hectares into the name of the Plaintiff, against payment by
the Plaintiff of the amount of R14,540,000.00 plus Value Added Tax to

the Pamperlang Trust;
24.3
The plaintiff is liable to pay interest to the Pamperlang Trust, in
terms of the provisions of
section 28(1)(a)(i)
of the
Alienation of
Land Act, at
the rate of 9 % per annum from 27 May 2010 to date of
payment.
”
[3]
The following are common cause between the parties to the exception:
3.1
Salut la Vie and the Trust represented by its three appointed
trustees entered into the agreement of sale in respect of
certain
lots forming part of the property, yet to be subdivided.
3.2
Salut la Vie and the Trust purported to enter into a further
agreement, the addendum.  Only two of the three
appointed
trustees signed the addendum.  The addendum does not comply with
the provisions of section 2 of the Act.
3.3
The property in question is agricultural land and the sixth defendant
had to consent to subdivision thereof in terms
of the provisions of
the Subdivision of Agricultural Land Act, No. 70 of 1970.
3.4
It was recorded in the addendum that transfer of certain lots had not
taken place because the fifth defendant had
insisted on obtaining a
letter from the Department of Agriculture evidencing their consent to
the subdivision of the aforementioned
lots.
3.5
Salut la Vie and the Trust then purported to agree to the transfer of
the property into the name of the Trust for
the same purchase price
stated in the main agreement, subject thereto that the Trust transfer
back to Salut la Vie that portion
of the property which had not
initially formed part of the object of the earlier agreement of sale,
on demand and at no consideration;
3.6
Transfer of the property was effected in the records of the fifth
defendant on or about 26 May 2010.
3.7
The Trust had not complied with its obligations in terms of
the addendum as it had not retransferred certain lots back
to Salut
la Vie.
[4]
It is trite that a plaintiff must disclose a cause of action, which
implies that it must set out every fact which would be necessary
to
prove in order to support his right to judgment.  It does not
comprise however that he set out every piece of evidence
which would
be necessary to prove such fact.
[1]
[5]
The approach to be followed when deciding if an exception has been
validly raised, was set out in
Colonial
Industries Ltd v Provincial Insurance Co Ltd
[2]
“
...
its principal use is to raise and obtain a speedy and economical
decision of questions of law which are apparent on the face
of the
pleadings... and that save in the instance where an exception is
taken for the purpose of raising a substantive question
of law which
may have the effect of settling the dispute between the parties,
an excipient should make out a very clear, strong
case before he
should be allowed to succeed.”
[6]
It is trite that an exception must be decided on the basis that the
facts pleaded have been established.
[3]
In
Lewis
v Oneanate (Pty) Ltd
[4]
,
Nicholas AJA stated that:
“
Since
these are proceedings on exception, it must be borne in mind that the
appellant has the duty as excipient to persuade the
Court that upon
every interpretation which the particulars of claim,…, can
reasonably bear, no cause of action is disclosed.”
[7]
The passage above implies that it would not be correct to isolate
certain passages or a few passages and analyse them without
reference
to the rest of the document or the documents that make up such
claim.  An over-technical approach should not be
taken in
assessing whether a cause of action has been disclosed.
[5]
[8]
In short, the exception is based thereupon that the abstract theory
of transfer applies to the sale and transfer of immovable
property
and as such does not require a valid underlying contract or legal
causa
for
the transfer.  The requirements for passing ownership is
delivery, effected by registration of transfer in the Deeds Office,

coupled with a real agreement that the parties intended to transfer
ownership and the other party to become the owner of the
property.
[6]
A defect in
the underlying agreement, such as non-compliance of the provisions of
section 2(1) of the Act, does not affect
the validity of the transfer
of ownership to a
bona
fide
purchaser and the property cannot be vindicated.
[7]
[9]
Adv Snellenburg SC, with reference to
Legator
McKenna Inc & Another v Shea and Others
[8]
and
Kriel
v Terblanche
[9]
,
submitted that Salut la Vie’s claim does not contain the
averments necessary to sustain a cause of action because it was

merely alleged that the addendum had not been signed by all the
trustees, that it is therefore null and void and thus entitles
Salut
la Vie to a declaratory order to that effect and entitles it to claim
retransfer as a consequence thereof.  He submitted
that there
had in this instance been the serious intention to pass and receive
ownership and that the transfer of ownership was
therefore valid.
[10]
The facts of this matter differ from those in the Legator- and
Kriel-cases.  In both those matters the transferor and

transferee had fulfilled their obligations in terms of the underlying
agreement.  In his heads of argument Mr Snellenburg
only
referred to paragraphs 20 and 24 of the particulars of claim, but not
the allegations contained in paragraphs 22 and 23 thereof,
where it
was alleged that the Trust, in this instance the transferee/alienee,
had not fully performed in terms of the addendum
as certain lots had
not been retransferred to the plaintiff.  These allegations
must, for purposes of the exception, be accepted
as having been
established.
[11]
As far as formal defects in contracts of sale of land are concerned,
the position is governed by the Act.  As one of the
trustees had
not signed the addendum, the Trust had not been properly represented
and this constituted a formal defect in the underlying
agreement and
non-compliance with section 2(1) of the Act.
[10]
The effect of such non-compliance is that no alienation of the land
shall, subject to the provisions of section 28 of the
Act, be of any
force or effect.
[12]
Section 28 deals with c
onsequences
of deeds of alienation which are void or are terminated and
reads
as follows:
“
(1)
Subject to the provisions of subsection (2),
any
person who has performed partially or in full
(my
emphasis)
in
terms of an alienation of land which is of no force or effect in
terms of section 2(1), or a contract which has been declared
void in
terms of the provisions of section 24(1)(c), or has been cancelled
under this Act, is entitled to recover from the other
party that
which he has performed under the alienation or contract, and-
(a) the
alienee may in addition recover from the alienator ...
(b) the
alienator may in addition recover from the alienee ...
(2)
Any alienation which does not comply with the provisions
of section 2(1) shall in all respects be valid ab initio
if the
alienee
had performed
in
full
(my
emphasis)
in
terms of the deed of alienation or contract and the land in question
has been transferred to the alienee.”
[13]
Adv Michau SC, on behalf of Salut la Vie, submitted that the
particulars of claim are not excipiable as the excipients had
not
performed fully in terms of the addendum and this being so, the
provisions of section 28(2) of the Act would not render the
addendum
valid
ab
initio.
[14]
Salut la Vie alleged in the particulars of claim that the alienee,
being the excipients, had not performed in full under the
addendum
and the addendum can thus not be deemed to be valid
ab
initio
in
terms of section 28(2) of the Act.  In terms of section 28(2) of
the Act the addendum (underlying agreement) would be deemed
valid
ab
initio
,
if the alienee (the Trust in this instance) had performed in full in
terms of the addendum.
[15]
It was also alleged in the particulars of claim that Salut la Vie had
performed in terms of the addendum, which it seeks to
have declared
to be of no force or effect.  A viable interpretation section
28(1) of the Act, at least for purposes of the
exception, would be
that any person who had performed partially or in full (Salut la Vie
in this instance), would be entitled to
recover from another party
which had not performed in full (the Trust in this instance) that
which it had performed in terms of
the underlying agreement (the
addendum in this instance).  It thus appears as if recovery of
performance would be barred only
if both parties have already
performed in full.
[11]
[16]
At this stage of proceedings, when considering the exception, it
cannot be said that
upon
every interpretation which the particulars of claim can reasonably
bear, no cause of action has been disclosed.
[17]
With regard to the submissions by Mr Snellenburg that the real
agreement was valid in that there had been the serious intention
to
pass and receive ownership, it was submitted on behalf of Salut la
Vie, although not explicitly pleaded as such, that the absence
of the
signature of the third trustee is not simply a case of the underlying
agreement being
void
ab initio
and the real agreement remaining in existence.
[18]
Mr Michau submitted that the absence of the signature of the third
trustee is not a mere formality but strikes at the heart
of the
transaction as it impacted on the ability of the Trust to be bound to
the addendum.  In the absence of a joint decision
by all the
trustees, there could never have been an expression of intent on the
part of the Trust to enter into an agreement and
to accept transfer
in the circumstances. There could therefore be no real agreement
because of a lack of consensus.
[19]
Paragraph 19 of the particulars of claim contains specific
allegations pertaining to the trustees and the absence of the
signature
of the third trustee. In
Land
and Agricultural Bank of SA v Parker & Others
[12]
it was found that in order to bind a trust all the trustees must act
jointly and, in the absence thereof, no agreement whether
real or
otherwise, can come into existence.   Although not
explicitly pleaded that there had been no consensus in respect
of the
real agreement, evidence in this regard will be admissible during the
trial.
[13]
I am thus not
convinced that no evidence can be led which can disclose a cause of
action that the addendum was null and void because
of a lack of
consensus.
[14]
[20]
If accepted that all the averments contained in paragraphs 19 to 24
are assumed to be correct and if read with the other averments

contained in the particulars of claim and the annexures thereto, I
cannot find that, on every interpretation of the particulars
of
claim, a cause of action has not been disclosed.  Even if
allowed, it would not dispense with the leading of unnecessary

evidence since the evidence required to prove the claim in paragraphs
19 to 24 will also have to be led in respect of the remainder
of the
claims.
[15]
The exception
therefore stands to be dismissed.
[21]
Mr Snellenburg did not advance any argument why costs should not
follow the event.  I find no reason why it should not.
The
matter is clearly of great importance to both parties and from the
start of the proceedings two counsel had been briefed by
the
plaintiff, Salut la Vie. I am satisfied, on a consideration of the
relevant factors and the complexity of the matter, that
the
employment of two counsel by the plaintiff in the exception was
justified.
ACCORDINGLY,
I MAKE THE FOLLOWING ORDER:
1.
THE
EXCEPTION RAISED BY THE FIRST, SECOND AND THIRD DEFENDANTS IS
DISMISSED.
2.
THE
FIRST, SECOND AND THIRD DEFENDANTS ARE ORDERED TO PAY THE COSTS OF
THE EXCEPTION, INCLUDING THE COSTS OF TWO COUNSEL, JOINTLY
AND
SEVERALLY, THE ONE PAYING THE OTHER TO BE ABSOLVED.
__________________
ERASMUS,
SL
ACTING
JUDGE
On
behalf of the Excipients:
Adv
N Snellenburg SC oio Haarhoffs Inc
On
behalf of Respondent:
Adv
R Michau SC and Adv J Hershensohn oio Hugo Matthewson and Oosthuizen
Inc
[1]
McKenzie
v Farmers Co-operative Meat Industries
Ltd
1922
AD 16
at 23;
Blue
Chip 2 (Pty) Ltd v Ryneveldt
(499/15)
[2016] ZASCA 98
at para
[14]
[2]
1920
CPD 627
at 630E
[3]
AB
Ventures Limited v Siemens Ltd
2011(4) SA 614 (SCA) at para[2]
[4]
[1992] ZASCA 174
;
1992 (4)
SA 811
(AD) at 817 F to G
[5]
South
African National Parks v Ras
2002 (2) SA 537
(C) at 541 I to J
[6]
Kriel
v Terblanche NO en Andere
2002(6)
SA 132 (NC)
[7]
Du
Plessis v Prophitius & Anoth
er
2010 (1) SA 49
SCA;
Oriental
Products (Pty) Ltd v Petma 178 Investments Tradings & Others
2011
(2) SA SCA
[8]
[2009]
All SA 45
SCA
[9]
2002 (6)
SA 132
NC
[10]
Thorpe
&
others
v Trittenwein
&
another
2007
(2) SA 172
(SCA) at para [14]-[17]
[11]
Silberg
and Schoemans
:
The Law of Property
,
5
th
edition (2015) 77-78
[12]
2005 (2)
SA 77
SCA at paras [15] – [18]
[13]
McKelvey
v Cowan NO
1984
SA 525
(Z) at 526D-E
[14]
Thorpe
& Others v Trittenwein & Another
supra
[15]
Barclays
National Bank Ltd v Thompson
1989(1)
SA 547 (A) at 553

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