Lombaard v Droprop CC and Others (5895/08) [2009] ZAKZPHC 52 (18 June 2009)

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[2009] ZAKZPHC 52
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Lombaard v Droprop CC and Others (5895/08) [2009] ZAKZPHC 52 (18 June 2009)

IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU NATAL, PIETERMARITZBURG
CASE NO.
5895/08
In the matter between:
JAN ANTONIE LOMBAARD
PLAINTIFF
and
DROPROP CC FIRST RESPONDENT
DROPATHY PREETHEPAUL
SECOND RESPONDENT
DHARUMDAW PREETHEPAUL
THIRD RESPONDENT
OMESH PREETHEPAUL FOURTH
RESPONDENT
RULING ON
APPLICATION
FOR LEAVE TO APPEAL
NDLOVU J
This is an application for leave to
appeal against my entire judgment in this matter handed down on 23
February 2009.
There were
primarily two issues which I had to decide, namely:
1. Whether the
inclusion of the prefixed word “certain” in the description of
immovable property in a lease agreement made any
difference as to
render the description as such non-compliant with
section 2(1)
of the
Alienation of Land Act 68 of 1981
, in the context where such word did
not appear in the official description of the same property in the
title deed.
2. Whether a member
of a close corporation who acts as agent of the corporation in terms
of section 54 of the Close Corporation
Act 69 of 1984 requires
written authority as envisaged in
section 2(1)
of the
Alienation of
Land Act to
conclude a transaction involving the sale of land on
behalf of the corporation.
On the first issue
I held, in part, as follows:
“
[41] In my view,
the use of the word “certain” in the description of the property
in the head lease did create confusion and
ambiguity as to the
precise piece of land which was leased to the applicant.
[47] In my
judgment, I am satisfied, on the papers, that the description of the
property in the head lease did not clearly identify
the land in
dispute with reasonable certainty and, therefore, did not pass muster
of
the peremptory requirement prescribed by
section 2(1)
of the Act.”
On the second issue I held as follows:
“[57] Therefore, it seems to me
that the careful reading of section 2(1) of the Act in conjunction
with section 54 of the CC
Act dictates the position to be that in
every contractual transaction involving alienation of land, entered
into by a member of
a close corporation who signed the transaction as
agent on behalf of the corporation in terms of section 54(1) of the
CC Act, such
contractual performance by the said member shall be null
and void and of no legal force or effect unless the member concerned
(1)
had the “power to act for the corporation in the particular
matter” in the manner and to the extent as provided for in section

54(2) of the CC Act; and (2) “written authority” was given to him
or her by the corporation to act on its behalf in the particular

matter, as required under section 2(1) of the Alienation of Land
Act.”
Both decisions were
in favour of the respondents. Hence, I dismissed the application
with costs. The applicant now seeks leave
to appeal to the Supreme
Court of Appeal against the said judgment.
I do recognise,
with regard to the second issue, in particular, that there was no
decision thus far by any Court (including the
Supreme Court of
Appeal) which could be found dealing with the issue. There was no
doubt that this decision had far-reaching implications,
and was of
national importance as it affected property transactions concluded by
close corporations nationwide.
Having considered
the application and submissions made, i
t
does appear to me that there is a reasonable prospect that a higher
court might consider the matter differently on either or both
issues
and that leave to appeal should therefore be granted. Both counsel
were
ad
idem
that the appropriate appellate forum should be the Supreme Court of
Appeal.
Accordingly the following order is
granted:
1. Leave to appeal of the Supreme
Court of Appeal is granted.
2. Costs of the
application shall be costs in the course of the appeal.
18 June
2009 ……………………………………….
Application heard on : 18 June
2009
Counsel for the
applicant : Mr RG Mossop
Instructed by
: J Leslie Smith & Company
Counsel for the
respondent : Mr L Pillay SC
Instructed by
: R Sham & Associates
Judgment handed down on : 18 June
2009