De Bruyn NO and Others v Kotze NO and Others (1726/2011) [2011] ZAFSHC 117 (28 July 2011)

De Bruyn NO and Others v Kotze NO and Others (1726/2011) [2011] ZAFSHC 117 (28 July 2011)

The court found that the lease agreements did not create an option for the respondent to keep the sheep and pay their value at any time. The operative word in the clause is 'expiry date', requiring the lessee to either return the sheep or pay their value at the end of the lease. If the respondent chose to keep the sheep but failed to pay, it was in breach, and the applicants were entitled to demand return of the sheep. The applicants' indulgence in granting extensions did not waive their right to restitution. The contract did not require return of the exact same sheep, but the same number and type, and the respondent bore the risk of loss. The respondents' argument that only damages could...

Citation
[2011] ZAFSHC 117
Parties
Applicant: Mrs Maria Alette de Bruyn N.O.; Applicant: Mrs Martha Elizabeth de Bruyn N.O.; Applicant: Mr Michiel Wilhelm Gerhardus Voges N.O.; Respondent: Mr Johannes Christiaan Kotze N.O.; Respondent: Mr Graham Corbett Coetzee N.O.; Respondent: Tobie Myburgh Afslaers CC
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 July 2011
Case Number
1726/2011
Procedural Posture
Urgent Application / Final Order Following Rule Nisi and Interim Interdict
Outcome
Application granted; final order for delivery of sheep and costs awarded against first and second respondents.
Judges
H.M. Musi
Legal Topics
Lease Agreement Interpretation, Final Interdict, Restitutionary Interdict, Contractual Option, Urgent Interdict, Specific Performance
Civil Procedure Commercial and Corporate Lease Agreement Interpretation Final Interdict Restitutionary Interdict Contractual Option Urgent Interdict Specific Performance

Case Brief

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Parties

Mrs Maria Alette de Bruyn N.O.

Applicant

Mrs Martha Elizabeth de Bruyn N.O.

Applicant

Mr Michiel Wilhelm Gerhardus Voges N.O.

Applicant

Mr Johannes Christiaan Kotze N.O.

Respondent

Mr Graham Corbett Coetzee N.O.

Respondent

Tobie Myburgh Afslaers CC

Respondent

Procedural Posture

Urgent Application / Final Order Following Rule Nisi and Interim Interdict

Legal Issues

  1. 1 Whether the applicants are entitled to a final order for delivery of sheep under the lease agreements.
  2. 2 Whether the relevant lease clause creates an option or merely alternative obligations at expiry.
  3. 3 Whether the applicants forfeited their right to claim return of the sheep by agreeing to accept payment.

Ratio Decidendi

The court found that the lease agreements did not create an option for the respondent to keep the sheep and pay their value at any time. The operative word in the clause is 'expiry date', requiring the lessee to either return the sheep or pay their value at the end of the lease. If the respondent chose to keep the sheep but failed to pay, it was in breach, and the applicants were entitled to demand return of the sheep. The applicants' indulgence in granting extensions did not waive their right to restitution. The contract did not require return of the exact same sheep, but the same number and type, and the respondent bore the risk of loss. The respondents' argument that only damages could...

Court Disposition

Application granted; final order for delivery of sheep and costs awarded against first and second respondents.

Orders

  • The first and second respondents are directed to immediately deliver to the applicants sheep as described in the lease agreement dated 25 August 2007: 55 Dormer ewe in lamb; 21 Dormer ewe in lamb; 130 Meat Merino ewe in lamb; 22 Meat Merino ewe in lamb.
  • The first and second respondents are directed to immediately deliver to the applicants sheep as described in the lease agreement dated 25 September 2007: 76 Dormer ewe; 59 lambs; 3 Merino Ram.