3 Tenners Properties CC v Trustees for the time being of the Atlantic Seaboard Trust (9478/2008) [2011] ZAWCHC 51 (22 March 2011)

3 Tenners Properties CC v Trustees for the time being of the Atlantic Seaboard Trust (9478/2008) [2011] ZAWCHC 51 (22 March 2011)

The court held that the oral agreement as pleaded does not constitute a donation, as the plaintiff agreed not to object to the defendant's building plans, negating the element of pure benevolence required for donation. The agreement also does not constitute an exchange under the Alienation of Land Act, as neither party undertook to transfer a thing to the other; rather, each party agreed to abandon a personal right. The right to object to building plans is not an interest in land, and the defendant provided no authority to the contrary. The court found that the amended declaration is not excipiable on every reasonable interpretation and thus dismissed the exception.

Citation
[2011] ZAWCHC 51
Parties
Plaintiff: 3 Tenners Properties CC; Defendant: Trustees for the time being of the Atlantic Seaboard Trust
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
22 March 2011
Case Number
9478/2008
Procedural Posture
Exception Application / Exception to Amended Declaration
Outcome
Defendant's exception dismissed with costs.
Judges
Cloete
Legal Topics
Alienation of Land Act, Servitude Creation, Oral Agreements, Exception Procedure
Land and Property Civil Procedure Alienation of Land Act Servitude Creation Oral Agreements Exception Procedure

Case Brief

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Parties

3 Tenners Properties CC

Plaintiff

Trustees for the time being of the Atlantic Seaboard Trust

Defendant

Procedural Posture

Exception Application / Exception to Amended Declaration

Legal Issues

  1. 1 Whether the oral agreement for the registration of a height restriction servitude constitutes a donation or exchange under the Alienation of Land Act and is thus unenforceable without written form.
  2. 2 Whether the plaintiff's amended declaration discloses a cause of action.

Ratio Decidendi

The court held that the oral agreement as pleaded does not constitute a donation, as the plaintiff agreed not to object to the defendant's building plans, negating the element of pure benevolence required for donation. The agreement also does not constitute an exchange under the Alienation of Land Act, as neither party undertook to transfer a thing to the other; rather, each party agreed to abandon a personal right. The right to object to building plans is not an interest in land, and the defendant provided no authority to the contrary. The court found that the amended declaration is not excipiable on every reasonable interpretation and thus dismissed the exception.

Court Disposition

Defendant's exception dismissed with costs.

Orders

  • The defendant's exception is dismissed with costs.