Bonheur 76 General Trading (Pty) Ltd and Others v Caribbean Estates (Pty) Ltd and Others (116/10) [2011] ZASCA 19 (17 March 2011)

Bonheur 76 General Trading (Pty) Ltd and Others v Caribbean Estates (Pty) Ltd and Others (116/10) [2011] ZASCA 19 (17 March 2011)

The court found that Bonheur had no valid right of pre-emption over the Caribbean share, as the agreements relied upon were unsigned and did not comply with statutory requirements for land transactions. No oral partnership agreement existed between Bonheur and Caribbean that would preclude alienation of the share. Statutory and common law principles permit a co-owner to alienate or mortgage his share without the consent of other co-owners. The allegations of simulated or sham transactions were unsupported by evidence and speculative. The appeal was dismissed as Bonheur failed to establish any legal basis for setting aside the sale, mortgage, or for interdictory relief.

Citation
[2011] ZASCA 19
Parties
Appellant: Bonheur 76 General Trading (Pty) Ltd; Appellant: The Morningside Wedge Office Park Owners Association (Association Incorporated Under Section 21); Appellant: Leslie William Lob; Respondent: Caribbean Estates (Pty) Ltd; Respondent: Wedgeport (Pty) Ltd; Respondent: Martin Ettin; Respondent: Derek Greenberg; Respondent: Gregory Francis Porteous; Respondent: Douglas William Porteous; Respondent: Registrar of Deeds, Pretoria
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
17 March 2011
Case Number
116/10
Procedural Posture
Civil Appeal / Appeal From South Gauteng High Court (johannesburg)
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Harms, Lewis, Ponnan, Malan, Theron
Legal Topics
Right of Pre Emption, Alienation of Land Act, Co Ownership, Simulated Transactions
Land and Property Civil Procedure Right of Pre Emption Alienation of Land Act Co Ownership Simulated Transactions

Case Brief

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Parties

Bonheur 76 General Trading (Pty) Ltd

Appellant

The Morningside Wedge Office Park Owners Association (Association Incorporated Under Section 21)

Appellant

Leslie William Lob

Appellant

Caribbean Estates (Pty) Ltd

Respondent

Wedgeport (Pty) Ltd

Respondent

Martin Ettin

Respondent

Derek Greenberg

Respondent

Gregory Francis Porteous

Respondent

Douglas William Porteous

Respondent

Registrar of Deeds, Pretoria

Respondent

Procedural Posture

Civil Appeal / Appeal From South Gauteng High Court (johannesburg)

Legal Issues

  1. 1 Whether Bonheur had a valid right of pre-emption over the Caribbean share in the property.
  2. 2 Whether an oral partnership agreement existed precluding alienation of the Caribbean share without Bonheur's consent.
  3. 3 Whether common law or statutory principles required co-owner consent for alienation or mortgage of the Caribbean share.

Ratio Decidendi

The court found that Bonheur had no valid right of pre-emption over the Caribbean share, as the agreements relied upon were unsigned and did not comply with statutory requirements for land transactions. No oral partnership agreement existed between Bonheur and Caribbean that would preclude alienation of the share. Statutory and common law principles permit a co-owner to alienate or mortgage his share without the consent of other co-owners. The allegations of simulated or sham transactions were unsupported by evidence and speculative. The appeal was dismissed as Bonheur failed to establish any legal basis for setting aside the sale, mortgage, or for interdictory relief.

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including those of two counsel.