Bright Idea Projects 66 (Pty) Ltd t/a All Fuels Moosa N.O and Others (4063/2018D) [2020] ZAKZDHC 47 (12 October 2020)

Bright Idea Projects 66 (Pty) Ltd t/a All Fuels Moosa N.O and Others (4063/2018D) [2020] ZAKZDHC 47 (12 October 2020)

The court held that the right of pre-emption in the lease was extended upon renewal and transferred with the lease, supported by written agreements and endorsements on the title deed. The distinction between collateral and incidental terms is no longer necessary; all terms are extended with renewal. The remedy of 'stepping in' is competent both on the facts and the law, as established by Mokone and Oryx. The excipients' reliance on case law was misplaced, as none supported their grounds of exception. The fraudulent expunging of the pre-emption from the title deed and the constructive and statutory notice to the excipients further supported Bright Idea's claim. The declaration disclosed a...

Citation
[2020] ZAKZDHC 47
Parties
Plaintiff: Bright Idea Projects 66 (Pty) Ltd t/a All Fuels; Defendant: Younus Moosa N.O; Defendant: Mahomed Moosa N.O; Defendant: Adnaan Younus Moosa N.O; Defendant: Ahmed Moosa N.O; Defendant: Shell Downstream SA (Pty) Ltd; Defendant: Registrar of Deeds for the Province of KwaZulu-Natal
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
12 October 2020
Case Number
4063/2018D
Procedural Posture
Civil Procedure / Exception to Declaration; Interlocutory Order
Outcome
Exception dismissed with costs, including costs of two counsel.
Judges
D Pillay
Legal Topics
Right of Pre Emption, Lease Renewal, Specific Performance, Huur Gaat Voor Koop, Formalities in Respect of Leases, Fraudulent Transfer
Land and Property Civil Procedure Right of Pre Emption Lease Renewal Specific Performance Huur Gaat Voor Koop Formalities in Respect of Leases Fraudulent Transfer

Case Brief

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Parties

Bright Idea Projects 66 (Pty) Ltd t/a All Fuels

Plaintiff

Younus Moosa N.O

Defendant

Mahomed Moosa N.O

Defendant

Adnaan Younus Moosa N.O

Defendant

Ahmed Moosa N.O

Defendant

Shell Downstream SA (Pty) Ltd

Defendant

Registrar of Deeds for the Province of KwaZulu-Natal

Defendant

Procedural Posture

Civil Procedure / Exception to Declaration; Interlocutory Order

Legal Issues

  1. 1 Does the right of pre-emption in a lease extend upon renewal of the lease?
  2. 2 Is the remedy of 'stepping in' available to the holder of a right of pre-emption when the property is sold in breach of that right?
  3. 3 Is the right of pre-emption a real right enforceable against successors in title or merely a personal right?

Ratio Decidendi

The court held that the right of pre-emption in the lease was extended upon renewal and transferred with the lease, supported by written agreements and endorsements on the title deed. The distinction between collateral and incidental terms is no longer necessary; all terms are extended with renewal. The remedy of 'stepping in' is competent both on the facts and the law, as established by Mokone and Oryx. The excipients' reliance on case law was misplaced, as none supported their grounds of exception. The fraudulent expunging of the pre-emption from the title deed and the constructive and statutory notice to the excipients further supported Bright Idea's claim. The declaration disclosed a...

Court Disposition

Exception dismissed with costs, including costs of two counsel.

Orders

  • The exception is dismissed with costs, including the costs of two counsel.