Bouba v Van Staden NO and Others (21046/2007) [2012] ZAGPPHC 69 (24 April 2012)

Bouba v Van Staden NO and Others (21046/2007) [2012] ZAGPPHC 69 (24 April 2012)

The court held that Pretoria Waterfront (Pty) Ltd, as the seller in the deed of sale, has a direct and substantial interest in the proceedings and must be joined as a party. The contract for the sale of the property is alleged to be void under section 67 of the Town Planning and Township Ordinance, but confirmation of this nullity requires Waterfront's participation. The arbitration clause in the building contract is binding and peremptory, requiring disputes to be referred to arbitration before litigation. The action is therefore premature and must be stayed pending arbitration. Costs follow the event, and the defendants are entitled to costs occasioned by the postponement.

Citation
[2012] ZAGPPHC 69
Parties
Plaintiff: Asma'ou Bouba; Respondent: Petrus Jacobus Maryn Van Staden N.O.; Respondent: Tirhani Sitos De Sitos Mathebuia N.O.; Respondent: Dean Marius Botha N.O.; Respondent: Kgashane Christopher Monyela N.O.; Respondent: Richard Barry Nel N.O.; Respondent: Ester Emerentia Nel N.O.; Respondent: Marize Coetzee N.O.; Respondent: Morafic Bond Originators CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 April 2012
Case Number
21046/2007
Procedural Posture
Civil Trial / Special Pleas (non Joinder and Arbitration) Decided at Trial Commencement
Outcome
Special pleas of non-joinder and arbitration upheld. Proceedings postponed sine die. Plaintiff ordered to join Pretoria Waterfront (Pty) Ltd and pay wasted costs. Matter stayed pending arbitration.
Judges
Phatudi
Legal Topics
Joinder of Parties, Arbitration Clause, Invalid Contract, Town Planning and Township Ordinance, Trust Law
Civil Procedure Land and Property Joinder of Parties Arbitration Clause Invalid Contract Town Planning and Township Ordinance Trust Law

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Parties

Asma'ou Bouba

Plaintiff

Petrus Jacobus Maryn Van Staden N.O.

Respondent

Tirhani Sitos De Sitos Mathebuia N.O.

Respondent

Dean Marius Botha N.O.

Respondent

Kgashane Christopher Monyela N.O.

Respondent

Richard Barry Nel N.O.

Respondent

Ester Emerentia Nel N.O.

Respondent

Marize Coetzee N.O.

Respondent

Morafic Bond Originators CC

Respondent

Procedural Posture

Civil Trial / Special Pleas (non Joinder and Arbitration) Decided at Trial Commencement

Legal Issues

  1. 1 Whether Pretoria Waterfront (Pty) Ltd should be joined as a party due to its interest in the contract of sale.
  2. 2 Whether the arbitration clause in the building contract requires the dispute to be referred to arbitration before litigation.
  3. 3 Whether the contract for sale of the property is void under section 67 of the Town Planning and Township Ordinance.

Ratio Decidendi

The court held that Pretoria Waterfront (Pty) Ltd, as the seller in the deed of sale, has a direct and substantial interest in the proceedings and must be joined as a party. The contract for the sale of the property is alleged to be void under section 67 of the Town Planning and Township Ordinance, but confirmation of this nullity requires Waterfront's participation. The arbitration clause in the building contract is binding and peremptory, requiring disputes to be referred to arbitration before litigation. The action is therefore premature and must be stayed pending arbitration. Costs follow the event, and the defendants are entitled to costs occasioned by the postponement.

Court Disposition

Special pleas of non-joinder and arbitration upheld. Proceedings postponed sine die. Plaintiff ordered to join Pretoria Waterfront (Pty) Ltd and pay wasted costs. Matter stayed pending arbitration.

Orders

  • The matter is postponed sine die.
  • The plaintiff is to join Pretoria Waterfront (Pty) Ltd as a party to the proceedings.