Botha and Another v Rich N.O. and Others (CCT 89/13) [2014] ZACC 11; 2014 (4) SA 124 (CC); 2014 (7) BCLR 741 (CC) (17 April 2014)

Botha and Another v Rich N.O. and Others (CCT 89/13) [2014] ZACC 11; 2014 (4) SA 124 (CC); 2014 (7) BCLR 741 (CC) (17 April 2014)

The Constitutional Court held that section 27(1) of the Alienation of Land Act confers on a purchaser who has paid at least half the purchase price the right to demand transfer of the property, subject to registration of a mortgage bond for the balance. This right is enforceable by specific performance unless the purchaser is in breach of reciprocal obligations, in which case the seller may raise the exceptio non adimpleti contractus. Ms Botha was in arrears but made a tender to pay the outstanding amounts and municipal charges upon transfer. The Court found that denying transfer in these circumstances would be a disproportionate sanction, given the substantial payments already made. The...

Citation
[2014] ZACC 11
Parties
Applicant: Lorraine Sophie Botha; Applicant: Khululekani Laundry CC; Respondent: Henry Robins Rich N.O.; Respondent: Johannes Jacobus Wiese Hendriks N.O.; Respondent: Martha Magrieta Hendriks N.O.
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
17 April 2014
Case Number
CCT 89/13
Procedural Posture
Civil Appeal / Appeal From the Full Court of the Northern Cape High Court, Kimberley
Outcome
Appeal upheld. Orders of the Northern Cape High Court and Full Court set aside. Specific performance granted subject to payment of arrears and registration of a mortgage bond.
Judges
Moseneke, Skweyiya, Cameron, Dambuza, Froneman, Jafta, Madlanga, Mhlantla, Nkabinde, Zondo
Legal Topics
Alienation of Land Act, Specific Performance, Forfeiture Clause, Reciprocity in Contract, Constitutional Control of Contract, Disproportionate Penalty
Land and Property Civil Procedure Constitutional Law Alienation of Land Act Specific Performance Forfeiture Clause Reciprocity in Contract Constitutional Control of Contract +1 more

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Parties

Lorraine Sophie Botha

Applicant

Khululekani Laundry CC

Applicant

Henry Robins Rich N.O.

Respondent

Johannes Jacobus Wiese Hendriks N.O.

Respondent

Martha Magrieta Hendriks N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal From the Full Court of the Northern Cape High Court, Kimberley

Legal Issues

  1. 1 Whether section 27(1) of the Alienation of Land Act entitles the purchaser to demand transfer after payment of half the purchase price.
  2. 2 Whether the enforcement of the cancellation clause and forfeiture of monies paid is contrary to public policy and unconstitutional.
  3. 3 Whether the purchaser is entitled to specific performance despite being in arrears.

Ratio Decidendi

The Constitutional Court held that section 27(1) of the Alienation of Land Act confers on a purchaser who has paid at least half the purchase price the right to demand transfer of the property, subject to registration of a mortgage bond for the balance. This right is enforceable by specific performance unless the purchaser is in breach of reciprocal obligations, in which case the seller may raise the exceptio non adimpleti contractus. Ms Botha was in arrears but made a tender to pay the outstanding amounts and municipal charges upon transfer. The Court found that denying transfer in these circumstances would be a disproportionate sanction, given the substantial payments already made. The...

Court Disposition

Appeal upheld. Orders of the Northern Cape High Court and Full Court set aside. Specific performance granted subject to payment of arrears and registration of a mortgage bond.

Orders

  • Applications for condonation are granted.
  • Leave to appeal is granted.