Bothongo Agriculture (Pty) Ltd v Kerbyland (Pty) Ltd and Others (18781/2018) [2019] ZAGPJHC 42 (22 February 2019)

Bothongo Agriculture (Pty) Ltd v Kerbyland (Pty) Ltd and Others (18781/2018) [2019] ZAGPJHC 42 (22 February 2019)

The court found that the applicant failed to establish any objective facts to support its allegations that Crab Farm exercised its right of first refusal for racially discriminatory reasons. The sale agreement between the applicant and Kerbyland was subject to a condition precedent requiring Crab Farm to waive its...

Source-derived case information.

Citation
[2019] ZAGPJHC 42
Parties
Applicant: Bothongo Agriculture GP (Pty) Ltd; Respondent: Kerbyland (Pty) Ltd; Respondent: Crab Farm Kroomdraai (Pty) Ltd; Respondent: Registrar of Deeds, Pretoria
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 February 2019
Case Number
18781/2018
Procedural Posture
Civil Application / Judgment
Outcome
Application dismissed with costs.
Judges
Weiner
Legal Topics
Right of First Refusal, Specific Performance, Unfair Discrimination, Section 9 Constitution, Contractual Conditions Precedent, Misrepresentation
Land and Property Civil Procedure Constitutional Law Right of First Refusal Specific Performance Unfair Discrimination Section 9 Constitution Contractual Conditions Precedent +1 more

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Parties

Bothongo Agriculture GP (Pty) Ltd

Applicant

Kerbyland (Pty) Ltd

Respondent

Crab Farm Kroomdraai (Pty) Ltd

Respondent

Registrar of Deeds, Pretoria

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to specific performance and transfer of the property despite the exercise of a right of first refusal by the second respondent.
  2. 2 Whether the exercise of the right of first refusal by Crab Farm amounted to unfair discrimination under section 9(4) of the Constitution.
  3. 3 Whether the applicant established objective facts to support allegations of racism and discrimination.

Ratio Decidendi

The court found that the applicant failed to establish any objective facts to support its allegations that Crab Farm exercised its right of first refusal for racially discriminatory reasons. The sale agreement between the applicant and Kerbyland was subject to a condition precedent requiring Crab Farm to waive its right of first refusal, which did not occur. Consequently, the agreement lapsed and was of no force or effect. The applicant's reliance on alleged misrepresentation was not supported by the terms of the written agreement, which contained an entire agreement clause. The court held that specific performance cannot be granted where the contract has lapsed, and the relief sought to...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.