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[2011] ZAKZPHC 13
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Dales v Rheeder and Others (AR 587/10) [2011] ZAKZPHC 13 (1 April 2011)
REPORTABLE
IN THE KWAZULU-NATAL HIGH COURT
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO.AR.587/10
In the matter between
REDMOND DALES
….......................................................................
Appellant
and
LEON STEFANUS RHEEDER
….................................................
First
Respondent
LYNN RHEEDER
…......................................................................
Second
Respondent
THE REGISTRAR OF DEEDS,
PIETERMARITZBURG
…...................................................
Third
Respondent
J U D G M E N T
Del. 1 April 2011
WALLIS J .
[1] This is yet another in the long line of cases that
commences with
Wilken v Kohler
,
1
passes through the seminal decisions in
Van
Wyk v Rottcher’s Sawmills (Pty) Limited
2
and
Clements v Simpson
3
and
arrives most recently at
Exdev
(Pty) Limited and Another v Pekudei Investments (Pty) Limited
,
4
in which our courts have had to consider whether
agreements for the purchase and sale of immovable property comply
with statutory
requirements that such agreements be reduced to
writing and signed by or on behalf of the parties.
5
Such cases arise either because the purchaser
6
or the seller
7
no longer wishes to proceed with the transaction. In the
present case it is the seller, Mr Rheeder, who no longer wishes to
sell
the property concerned to the purchaser, Mr Dales.
[2] This appeal arises from a successful exception taken
to the particulars of claim delivered on behalf of Mr Dales in an
action
to compel specific performance of the agreement. The exception
was taken on the basis that the particulars of claim failed to
disclose
a cause of action and, in the alternative, on the basis that
they are vague and embarrassing. It is not entirely clear from the
judgment on which of these inconsistent grounds the learned acting
judge upheld the exception. This is important because in the
former
case the judgment would be appealable and in the latter not.
8
The acting judge dealt first with the exception that the
particulars of claim failed to disclose a cause of action. Whilst not
expressly
saying so it appears that he held that this complaint was
well-founded as he concluded that the agreement on which Mr Dales
relied
did not contain ‘any clear agreement on the piece of
land to be sold’ and ‘there was no agreed price’.
He also said that it was neither here nor there whether Mrs Rheeder
had knowledge of the agreement between her husband and Mr Dales.
This
conveys that he concluded that the claim against Mrs Rheeder was
unfounded in law. All in all it appears that the exception
based on
the absence of a cause of action was upheld. But then, after reaching
these conclusions, the judgment continues to deal
‘briefly’
with the complaint that the particulars of claim are vague and
embarrassing and concludes that the defendants
would not know what
case they have to meet if the pleading is allowed to stand.
[3] This overlooks the difference between the two types
of exception, which is that the former attacks the legal validity of
the
claim and the latter its formulation. That difference was
expressed by FH Grosskopf JA in the passage already mentioned
9
from his judgment in
Trope and
others v South African Reserve Bank
:
‘
Where an exception is granted on the ground
that a plaintiff's particulars of claim fail to disclose a cause of
action, the order
is fatal to the claim as pleaded and therefore
final in its effect. (
Liquidators,
Myburgh, Krone & Co Ltd v Standard Bank of South Africa Ltd and
Another
1924 AD 226
at 229, 230.) Leave
to amend will be of no avail to a plaintiff in such a case unless he
is able to amend his particulars of claim
in such a way as to
disclose a cause of action. On the other hand, where an exception is
properly taken on the ground that the
particulars of claim are vague
and embarrassing, by its very nature the order would not be final in
its effect. All that a plaintiff
would be required to do in such a
case would be to set out his cause of action more clearly in order to
remove the source of embarrassment.’
[4] In this case the court
a quo
dealt first with the complaint that the
pleaded claim did not disclose a cause of action. As I have indicated
it appears that it
upheld this contention. That served to dispose of
the case and the brief consideration of the question of the vagueness
of the
pleadings added nothing to that conclusion. In my view the
judgment must be read as one upholding the exception on the basis
that
the particulars of claim disclose no cause of action. That was
the approach of counsel in argument. In my view they were correct
to
adopt that stance. I turn then to consider whether the particulars of
claim disclosed a cause of action.
[5] The agreement on which Mr Dales relies is contained
in a letter dated 6 May 2002 addressed by him to Mr Rheeder. The
opening
paragraphs deal with a loan by Mr Dales to Mr Rheeder. The
material paragraphs then read as follows:
‘
(4) This loan, as discussed with you, is
primarily to confirm that, in the event of you or a company in which
you have shares, purchasing
the property belonging to Pierre de
Villiers and/or his Trust, between our two homes, you will sell to
me, immediately you have
acquired such property, a strip of
approximately 20 m running parallel to my property. The purchase
price will be approximately
one-quarter of the price paid by you for
the full piece of land that will exclude the pan-handle which Pierre
de Villiers wishes
to keep. The price for the portion I wish to
acquire will be approximately R150 000 (One Hundred and Fifty
Thousand Rand).
(5) I also confirm that I have intimated to you that, should you be
successful in concluding a deal with Pierre de Villiers, I
will
assist with arranging the necessary finance, up to a maximum of
approximately R600 000 (six hundred thousand Rand), again
this being
primarily bridging money until such time as you are able to secure
finances on your home.’
Mr Rheeder signed this letter beneath a statement that
he accepted the conditions contained therein.
[6] According to the particulars of claim the property
owned by Pierre de Villiers was transferred jointly to Mr and
Mrs Rheeder
in October 2008 pursuant to the purchase thereof for the
sum of R1 800 000. Mr Dales now seeks to enforce the
agreement
embodied in the letter of 6 May 2002 and
instituted this action with a view to obtaining specific performance.
Mr and
Mrs Rheeder are defending the action and the exceptions that
are the subject of this appeal were taken on their behalf. Their main
argument is that the letter on which Mr Dales relies does not
adequately define either the property that is the subject of the
sale
or the purchase price payable by Mr Dales. They submit that neither
the locality nor the extent of the strip of land to be
acquired can
be determined by reference to the agreement and any admissible
extrinsic evidence. They contend further that the task
of identifying
the strip of land is complicated by the reference to the panhandle.
Lastly they say that as the price is only approximate
it is neither
fixed nor determinable. There is a further issue relating to the
joinder of Mrs Rheeder to the proceedings that will
be addressed
separately.
[7] Before turning to Mr and Mrs Rheeder’s primary
contentions it is appropriate to mention that Mr Dales wrote a
further
letter to Mr Rheeder on 27 February 2004, which Mr Rheeder
signed below the words:
‘
I acknowledge and confirm the contents of
this letter.’
The relevant portion of the letter reads:
‘
It is a specific condition of the loan
that, when you purchased the “de Villiers” property you
would sell to me 20 metres
of that portion running adjacent to our
property and at a subsequent meeting it was decided that this
property would have a pan-handle
access to Pearson Road, when the de
Villiers sold their residence.’
[8] The basis of the pleaded claim on behalf of Mr Dales
is that the subject matter of the sale is a strip of land 20 metres
wide
running adjacent to the border of his property and parallel to
the boundary between his property and the de Villiers property. He
alleges that in addition to the transfer to him of this property the
existing panhandle access to the de Villiers property from
Pearson
Road is to be maintained and he (Dales) will secure the right to use
the panhandle access by way of the registration of
a servitude over
the balance of the de Villiers property. Insofar as the purchase
price is concerned Mr Dales contends that
the price payable by him is
to be calculated as an amount that bears to the purchase price paid
by the Rheeders the same proportion
as the area of the strip of land
to be acquired by him bears to the overall area of the de Villiers
property.
[9] The legal principles to be applied in this case are
clear. In order to be enforceable the whole contract of sale, or at
any
rate all the material terms thereof, must be reduced to writing.
At the very least this means that the identity of the parties,
the
amount of the purchase price and the identity of the subject matter
of the contract, as well as any other material terms, must
be
ascertainable without recourse to evidence of an oral consensus
between the parties.
10
With regard to the description of the property the
question is whether the land alienated can be identified from the
contract itself,
without resorting to evidence from the parties
regarding their negotiations and their consensus. However this does
not require
a faultless description of the property sold, couched in
meticulously accurate terms. The cases fall into two broad
categories.
First there are those where the document itself
sufficiently describes the property to enable identification on the
ground. Second
there are those where it appears from the contract
that the parties intended that either the buyer or the seller (or
possibly some
third party) should identify the property sold from a
broader property.
11
The price must be fixed, or ascertainable by means of
the application of a formula or the determination of some third
party. An
agreement providing that one of the parties should
determine the price payable, in the absence of parameters within
which such
determination must be made, may be vulnerable to attack as
being void for vagueness.
12
However that issue does not arise here.
[10] These principles fall to be applied in the present
case in the context of an exception. That means that we are not
required
finally to determine the proper construction to be given to
the agreement between Mr Dales and Mr Rheeder. It will suffice to
defeat
the exception if the construction contended for by Mr Dales is
a possible construction of the language of the agreement bearing
in
mind the possibility of there being admissible evidence that will aid
in the process of construction. Courts are slow to resolve
issues of
interpretation in exception proceedings. Other than the negotiations
between the parties, all evidence that is relevant
to establish the
context or factual matrix against which the contract is to be
construed is admissible. The former distinction
between background
circumstances and surrounding circumstances no longer applies.
13
The meaning of contracts is not determined in isolation
but in the light of the whole context surrounding their conclusion
and in
such a way as to give them a commercially sensible meaning.
14
[11] Whilst at the stage of an exception the court is
not aware of all the evidence that may be available and admissible in
regard
to a question of construction the nature of some of the
evidential material in this case is relatively clear. The layout of
the
two properties will be relevant as will their topography. The
history, location and nature of the existing panhandle access to the
de Villiers property will be a feature. An examination of the terrain
may reveal why the parties fixed the dimensions of the strip
as being
approximately 20 metres. Evidence may be admissible to show why Mr
Dales wished to acquire this additional strip of land.
Bearing in
mind that the agreement is embodied in a letter addressed in 2002 it
may be relevant to the determination of the price
to have regard to
the likelihood of the de Villiers property being available for
purchase at that time and what price would have
been a reasonable
market price for it in 2002. The circumstances in which Mr Rheeder
might have required bridging finance
from Mr Dales in order to effect
the acquisition of the property may also be relevant. This is not to
say that any of these matters
will necessarily be admissible or
decisive of the proper interpretation of the agreement. However, when
one is dealing with an
exception to a pleading in circumstances where
it is plain that there may well be extrinsic evidence that is
admissible and relevant
to the proper construction of the contract
the court must be wary of deciding, in the absence of that evidence,
that a particular
construction of the contract is impermissible.
[12] Starting with the description of the property
purchased it was said in the letter of 6 May 2002 to be a strip of
approximately
20 metres running parallel to Mr Dales’ property.
It was rather faintly suggested in argument that this did not mean
that
the property to be acquired was necessarily adjacent to Mr
Dales’ property. However that seems to be a farfetched
contention.
No reason is suggested why Mr Dales should want an
additional piece of land not bordering on his own property. In any
event the
letter of 27 February 2004 makes it clear that this
additional strip would be adjacent to the Dales’ property. Once
that
is accepted the concept of a strip of land running parallel to
Mr Dales’ property may reasonably convey that what was intended
was a piece of land of consistent width adjacent to the existing
boundary and running the length of the relevant portion of Mr
Dales’
property. There is annexed to the particulars of claim a survey
diagram of the de Villiers property showing that the
relevant
boundary is a straight line some 211 metres long. With that piece of
information it is relatively easy to conceive of
a strip of land
adjacent to that boundary of uniform width and running the length of
the boundary.
[13] The next issue is the description of this strip as
being ‘approximately 20 m’. It was not suggested
that this
refers to anything other than the width of the strip and
that is a proper inference to be drawn from the terms of the letter.
There
are two possible answers to the submission that this renders
the description of the property sold insufficiently determinate. The
first is that the letter of 27 February 2004 says that what is to be
sold is a strip 20 metres wide. The two letters read together
are
therefore capable of the construction that what started as an
approximate description became definite when the second letter
was
written. The second answer is that this vested a discretion in Mr
Rheeder to determine precisely how wide the strip should
be, having
regard to the topography of the land adjacent to the boundary between
the two properties. That it is permissible to
vest the seller with a
discretion to identify the exact layout of the property to be sold
and its dimensions has been recognised
in several cases.
15
This is not to say that in every case where parties to a
sale of land describe the property sold in approximate terms their
contract
will necessarily be construed as giving one or other of the
parties a discretion to determine precisely what was sold.
16
What is required is a careful consideration of the
agreement in the light of all the evidence.
17
In this case it is at least reasonable to suppose that a
consideration of the topography of the two properties and Mr Dales’
reasons for wishing to acquire the additional strip may indicate that
he was not concerned with the precise width of the strip
and was
happy for that to be determined in good faith by Mr Rheeder in the
light of the factors I have mentioned. As that is a
possible
construction of the agreement it cannot be said at the stage of an
exception that the description of the property does
not comply with
the requirements of the statute.
[14]
I turn then to consider the price. The letter says that the price
would be approximately a quarter of the price to be paid
by Mr
Rheeder for the full piece of land excluding the panhandle. A
consideration of the survey diagram shows that a 20 metre strip
along
the boundary between the two properties is approximately 4200 square
metres of land. As the de Villiers property in its entirety
is 1.7
hectares such a strip would be slightly less than a quarter of the
whole property. The statement that the agreed price is
approximately
one quarter of what Mr Rheeder pays for the property is capable of
conveying that the parties intended the price
to bear the same
relationship to the total price as the area of the strip bears to the
area of the whole property. Certainly that
is a possible
construction. That is fortified by paragraph 5 of the letter dealing
with the bridging finance that the parties anticipated
Mr Rheeder
would need in order to acquire the de Villiers property. This
indicates that they thought the property could be
acquired for
approximately R600 000 in 2002. That may explain the statement in
paragraph 4 that the purchase price of the strip
to be acquired by Mr
Dales would be approximately R150 000 as that is one quarter of
R600 000. Giving due regard to these
factors it cannot be held
at the stage of an exception that Mr Dales’ contention that the
price payable for the strip to
be acquired by him was to bear the
same relationship to the overall price payable by Mr Rheeder as the
area of the strip bore to
the whole of the de Villiers property, is
untenable and not a construction that could reasonably be given to
the agreement.
[15] It follows that the contention that the agreement
between the parties does not comply with the requirements of the
Alienation
of Land Act cannot be sustained in proceedings by way of
exception. That is not to say that Mr Dales’ contentions in
regard
to the proper construction of the agreement are necessarily
correct. This judgment goes no further than holding that they are a
possible construction to be given to the agreement in the light of
all admissible extrinsic evidence. That conclusion suffices
to hold
that the exception based on non-compliance with the statute should
have failed.
[16] The exception was also advanced on certain
alternative grounds. It was said that the documents relied on
constitute agreements
to agree and that they do not contain all the
essentialia
of a sale.
However, once it is held that the agreement is capable of bearing the
meaning contended for by Mr Dales those contentions
must necessarily
fail. That leaves only one other point arising from the fact that Mrs
Rheeder took transfer of the de Villiers
property jointly with
her husband and, although she was not a party to either of the
letters, she is cited as a defendant against
whom relief is sought
jointly together with Mr Rheeder.
[17] It is unclear whether this exception serves any
point. As the joint registered owner of the de Villiers property Mrs
Rheeder
was in any event a necessary party to this litigation and
would have had to be joined to defend her interest in the property,
if
she chose to do so. Insofar as relief is sought against her it
does not appear to add any significant issue to those that will in
any event arise at the trial. Either she had knowledge of the
agreement or she did not and it is unlikely that this will be a major
factual issue between the parties. As the purpose of an exception is
to dispose of a particular cause of action and avoid the leading
of
unnecessary evidence at the trial
18
that purpose would not be served by upholding an
exception by Mrs Rheeder. It would do nothing more than eliminate
paragraph 17
of the particulars of claim and Mrs Rheeder’s
name from prayers 1 and 2. That would not materially affect the
issues
at the trial.
[18] Mr Dales contends that Mrs Rheeder is liable to
give effect to the agreement that he concluded with her husband
because she
was at all times aware of his rights in terms of the two
letters and cannot, by taking transfer of the property into her name
jointly
with her husband, defeat Mr Dales’ rights. In this
regard counsel relied upon the doctrine of notice. We were referred
to a number of cases involving double sales where that doctrine has
been applied. This is not such a situation. In the case of
double
sales the effect of the doctrine of notice is to prevent the second
purchaser from defeating the prior personal rights of
the first
purchaser. In this case the acquisition of any right by Mr Dales to
demand transfer of the strip of land was dependent
on Mr Rheeder or a
company in which he held shares purchasing the de Villiers property.
The right would only ripen into an enforceable
right after that
acquisition and is, in that sense, subsequent to, as well as being
dependent upon, the acquisition of the real
right. With double sales
the rights of the first and second purchasers are mutually exclusive.
Here the rights of Mr Dales
are wholly dependent upon Mr Rheeder
first acquiring ownership of the de Villiers property. The cases
involving double sales are
accordingly distinguishable.
[19] However, that is not an end to the matter. The
doctrine of notice has recently been the subject of reconsideration
and restatement
by the Supreme Court of Appeal in
Meridian
Bay Restaurant (Pty) Limited and Others v Mitchell NO.
19
That case dealt with a sectional title development. The
original plans when units were initially offered for sale showed that
there
would be 86 sections with a total area of 5886 square metres,
with the balance of the property being common property. After a
number
of purchasers had bought sections in the development the
person who controlled the developer of the scheme caused a sectional
title
plan to be registered in the Deeds Registry providing for 120
sections with a total area of 14 420 square metres. He did this not
by enlarging the building but by appropriating a large portion of the
common property. A number of the extra sections were registered
in
the name of the developer or an associate company. When those
companies were placed in liquidation and the true situation was
discovered the purchaser of a section successfully applied for the
appointment of a
curator ad litem
to the body corporate for the purpose of investigating
the situation and taking steps to recover the misappropriated common
property.
The liquidators sold and transferred certain of the
disputed sections to purchasers who had knowledge of the pending
proceedings
for the appointment of a
curator
ad litem
. Once the
curator
ad litem
had been appointed he commenced the
action that gave rise to the appeal to recover the units transferred
by the liquidators to the
third parties. The claim succeeded.
[20] In giving the judgment of the court Ponnan JA
pointed out that the doctrine of notice is an equitable doctrine that
runs counter
to the rule that a real right takes preference over a
merely personal right. He said:
‘
[14] Under the doctrine of notice, someone
who acquires an asset with notice of a personal right to it which his
predecessor in
title has granted to another, may be held bound to
give effect thereto. Thus a purchaser who knows that the merx has
been sold
to another, may, in spite of having obtained transfer or
delivery, be forced to hand it over to the prior purchaser.’
The doctrine affords an equitable remedy in
circumstances to which it applies and is not dependent upon fraud or
mala fides
.
20
[21] Although the classic statement of the doctrine of
notice and its principal form of application arises in the context of
double
sales it is not confined to that situation. Thus in
Associated
South African Bakeries (Pty) Limited v Oryx & Vereinigte
Bäckereien (Pty) Limited en Andere
21
the doctrine was applied to give relief to the holder of
a right of pre-emption, where the property had been sold to a third
party
in breach of that right. In
Cussons en
Andere v Kroon
22
it was applied to give relief to a partner in relation
to a partnership asset registered in the name of one partner but held
as
a partnership asset on behalf of both. The party in whose name the
property was registered had sold and transferred it to a third
party
without informing his partner or obtaining his consent to the sale.
The purchaser contended that the sale and transfer could
not be
attacked on the grounds of the doctrine of notice on the basis that
the doctrine is only available where the personal right
relied on by
the claimant is a right to acquire property (a
ius
ad rem acquirendam
). It was argued that the
only exceptions to that are in the case of a right of pre-emption or
an option. These contentions were
rejected by the court in the
following passage from the judgment:
‘
[13] Indien aan die persoonlike reg van die
reghebbende van 'n voorkoopsreg saaklike werking verleen word teenoor
diegene wat daadwerklik
daarvan kennis dra bestaan daar, na my
mening, geen rede waarom aan die respondent se persoonlike reg in die
onderhawige geval
nie ook sodanige werking gegee behoort te word nie.
Die twee gevalle is analoog aan mekaar. In die een geval kan die
verkoper nie
verkoop sonder dat hy die reghebbende geraadpleeg het en
sy toestemming tot die verkoping verkry het nie. In die ander geval
moet
hy ook die reghebbende se toestemming tot verkoping verkry in
die sin dat die reghebbende moet aandui dat hy nie self die eiendom
wil koop nie. 'n Verkoping in stryd met 'n verpligting om nie sonder
die toestemming van 'n derde te verkoop nie is ewe onbehoorlik
as 'n
verkoping in stryd met die regte van die reghebbende van 'n
voorkoopsreg. Beide die reghebbende van 'n voorkoopsreg en die
persoon wat 'n reg het dat 'n eiendom nie sonder sy toestemming
verkoop word nie het slegs 'n persoonlike reg en nie 'n reg
ad
rem acquirendam
nie. As die reg
eersgenoemde beskerm is daar geen rede waarom dit nie ook
laasgenoemde behoort te beskerm nie. Ons reg is immers
'n lewende
sisteem wat steeds ooreenkomstig die basiese beginsels daarvan
aangepas kan word om effektief te handel met nuwe situasies
wat
opduik (vgl
Willis Faber Enthoven (Pty)
Ltd v Receiver of Revenue and Another
[1991] ZASCA 163
;
1992
(4) SA 202
(A) op 220D - E). Insoverre die kennisleer nog nie
toegepas is op 'n geval soos die onderhawige nie behoort dit, in die
lig van
die voorgaande, uitgebrei te word om ook die onderhawige
geval te dek.’
23
[22] In
Meridian Bay
itself the curator was not enforcing a right to acquire
the additional sections. His contention was that they should never
have
been created and could not properly be deducted from the common
property of the development. Their acquisition by
Meridian
Bay
with knowledge of that contention meant
that
Meridian Bay
could
not assert its real right of ownership against the claim of the
curator. The court cited with approval
24
the following statement:
‘
Infringement of a personal right by an
acquirer of the real right is perceived as unlawful conduct.’
It continued and said in regard to
Meridian
Bay
25
that it:
‘…
knew, when it acquired the
disputed sections, not just that complaints were being levelled by
the prior purchasers but also of the
exact nature of those
complaints. It nonetheless chose to acquire the disputed sections
with full knowledge that such acquisition
was in conflict with the
prior personal rights of the purchasers. It follows that in
conducting itself thus Meridian Bay’s
conduct was wrongful.’
Accordingly, the action by the curator succeeded.
[23] The net effect of this is that the doctrine of
notice provides a flexible instrument through which prior personal
rights can
be protected against the holders of real rights acquired
with knowledge of those prior rights. Reasoning by analogy the rights
that Mr Dales seeks to protect in this action were acquired prior to
the acquisition by Mrs Rheeder of a real right of ownership
in the de
Villiers property. Whilst Mr Dales’ right could only be
enforced once that property had been acquired by Mr Rheeder
its
origin is prior to the acquisition of ownership of the de Villiers
property by Mr and Mrs Rheeder. If, as Mr Dales contends,
Mrs Rheeder
had full knowledge of Mr Dales’ agreement with her husband and
the rights he had secured thereby her position
seems to me
sufficiently analogous to the position of the purchasers in
Cussons
and
Meridian Bay
to
have the same consequences. Accordingly, if the contract is
enforceable against Mr Rheeder and Mrs Rheeder had notice thereof
it
will in my view be enforceable against her as well.
[24] That conclusion makes it unnecessary to consider
the effect of an obligation on Mr Rheeder to procure compliance with
his agreement
with Mr Dales in accordance with the rule enunciated by
Pothier
that:
‘
The seller is bound to deliver the thing to
the buyer if it is not already in his possession; and as a necessary
consequence of
this obligation, to do at his own expense, whatever
may be necessary to enable him to perform it.’
26
On that basis also the joinder of Mrs Rheeder in these
proceedings, even if no relief can be obtained against her, was
necessary
and the fact that relief is sought against her does not
justify an exception.
[25] In the circumstances the appeal is upheld with
costs and the order of the court
a quo
is set aside and replaced with the following order:
‘
1. The exceptions are
dismissed.
2. The first and second respondents are ordered jointly
and severally, the one paying the other to be absolved, to pay the
costs
of the exceptions.’
________________
SEEGOBIN J.
________________
BOOYENS AJ
DATE OF HEARING 25 MARCH 2011
DATE OF JUDGMENT 1 APRIL 2011
APPELLANT’S COUNSEL MR G D HARPUR SC
APPELLANT’S ATTORNEYS De Villiers, Evans and Petit
RESPONDENTS’ COUNSEL MR R J SEGGIE SC
RESPONDENTS’ ATTORNEYS Sinclair and Company
1
1913
AD 135
2
1948
(A) SA 983 at 989
3
1971
(3) SA 1
at 7 F-8A
4
2011
(2) SA 282
(SCA)
5
The
current statutory provision is
s 2(1)
of the
Alienation of Land Act
68 of 1981
.
6
Johnston
v Leal
1980 (3) SA 927
(A).
7
Rockbreakers
and Parts (Pty) Limited v Rolag Property Trading (Pty) Limited
2010
(2) SA 400
(SCA).
8
Trope
and others v South African Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A)
270F-H.
9
In
footnote 8.
10
Johnston
v Leal
1980 (3) SA 927
(A) 938B-C.
11
Exdev,
supra,
paras [15] and [16]
12
NBS
Boland Bank Ltd v One Berg River Drive CC and Others; Deeb and
Another v Absa Bank Ltd; Friedman v Standard Bank of SA Ltd
1999
(4) SA 928
(SCA) para 24.
13
KPMG
Chartered Accountants (SA) v Securefin Limited and Another
2009
(4) SA 399
(SCA) [39].
14
Ekurhuleni
Metropolitan Municipality v Germistion Municipal Retirement Fund
2010 (2) 498 (SCA) para [13].
15
Clements
v Simpson, supra,
9A-B;
JR
209 Investments (Pty) Limited and Another v Pine Villa Country
Estate (Pty) Limited: Pine Villa Country Estate (Pty) Limited
v JR
209 Investments (Pty) Limited
2009 (4)
SA 302
(SCA).
16
Botha
v Niddrie and Another
1958 (4) SA 446
(A).
17
As
occurred in
Party Investments (Pty)
Limited v Padayachey
1975 (3) SA 891
(N) at 893 C-894C.
18
Dharumpal
Transport (Pty) Limited v Dharumpal
1956
(1) SA 700
(A) at 706;
Barclays
National Bank Limited v Thompson
1989
(1) SA 547
(A) at 553 G-I.
19
[2011]
ZASCA 30.
20
Meridian
para [17]
21
1982
(3) SA 893
(A) at 908 E-H.
22
2001
(4) SA 833
(SCA).
23
‘
If
effect is given to the personal right of a holder of a right of
pre-emption against those with actual knowledge of that right,
there
exists, in my opinion, no reason why in the present case similar
effect should not be given to the respondent’s similar
right.
The two situations are analogous to one another. In the one case the
seller cannot sell without consulting the holder
of the right and
obtaining his consent to the sale. In the other case he must also
obtain the consent of the holder of the right
in the sense that he
must indicate that he does not himself wish to buy the property. A
sale in conflict with an obligation not
to sell without the consent
of a third party is as improper as a sale in conflict with the
rights of the holder of a right of
pre-emption. Both the holder of
the right of pre-emption and the person who has a right that the
property not be sold without
his consent only have a personal right
and not a right
ad
rem acquirendam
.
Our law is a living system that can be developed in accordance with
basic principles in order to deal with new situations that
emerge.
Insofar as the doctrine of notice has not yet been applied to a
situation such as the present it ought, in the light
of the
aforegoing, to be extended to cover the present situation. (My
translation)
24
In
an extract from an article by Brand JA quoted in para [19].
25
Para
[28].
26
Rockbreakers
and Parts (Pty) Limited v Rolag Property Trading (Pty) Limited,
supra,
para [16].