Biggs and Others v Muller and Others (ECJ 017/2005) [2005] ZAECHC 12 (31 March 2005)

Biggs and Others v Muller and Others (ECJ 017/2005) [2005] ZAECHC 12 (31 March 2005)

The court held that the Trust failed to match the second respondent's offer of R545,000, as required by the lease agreement. The right of pre-emption must be restrictively interpreted, and the matching requirement refers to the price offered, not the net proceeds after commission or other incidentals. The indemnity for commission was not offered within the 14-day period and was conditional, not equivalent to an unconditional payment of R30,000. Therefore, the Trust did not validly exercise its right of first refusal, and the prospects of success in the main action were non-existent. The applicants failed to establish a prima facie right to the interim interdict, and the application was...

Citation
[2005] ZAECHC 12
Parties
Applicant: James Cooke Biggs; Applicant: Trevor John Biggs; Applicant: Johannes Petrus Daniel Botha; Respondent: Johannes M Muller; Respondent: Shelfcorp 75 CC; Respondent: Registrar of Deeds
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
31 March 2005
Case Number
ECJ 017/2005
Procedural Posture
Urgent Application / Application for Interim Interdict Pending Action
Outcome
Application dismissed with costs.
Judges
Leach
Legal Topics
Pre Emptive Right, Interim Interdict, Matching Offer, Sale of Immovable Property, Commission Liability
Land and Property Civil Procedure Pre Emptive Right Interim Interdict Matching Offer Sale of Immovable Property Commission Liability

Case Brief

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Parties

James Cooke Biggs

Applicant

Trevor John Biggs

Applicant

Johannes Petrus Daniel Botha

Applicant

Johannes M Muller

Respondent

Shelfcorp 75 CC

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict Pending Action

Legal Issues

  1. 1 Whether the applicants, as trustees of the Trevor J Biggs Trust, validly exercised their right of pre-emption to purchase the property by matching the offer made by the second respondent.
  2. 2 Whether the offer of R515,000 by the Trust, excluding estate agent's commission, constituted a 'matching' offer as required by the lease agreement.
  3. 3 Whether an indemnity for commission, offered after the expiry of the 14-day period, could be considered in determining if the right of pre-emption was exercised.

Ratio Decidendi

The court held that the Trust failed to match the second respondent's offer of R545,000, as required by the lease agreement. The right of pre-emption must be restrictively interpreted, and the matching requirement refers to the price offered, not the net proceeds after commission or other incidentals. The indemnity for commission was not offered within the 14-day period and was conditional, not equivalent to an unconditional payment of R30,000. Therefore, the Trust did not validly exercise its right of first refusal, and the prospects of success in the main action were non-existent. The applicants failed to establish a prima facie right to the interim interdict, and the application was...

Court Disposition

Application dismissed with costs.

Orders

  • The application for an interim interdict restraining transfer of the property to the second respondent is dismissed.
  • The applicants are ordered to pay the costs of the application.