Dulce Vita CC v van Coller and Others (192/12) [2013] ZASCA 22; [2013] 2 All SA 646 (SCA) (22 March 2013)

Dulce Vita CC v van Coller and Others (192/12) [2013] ZASCA 22; [2013] 2 All SA 646 (SCA) (22 March 2013)

The Supreme Court of Appeal held that neither the contravention of section 11 of the Banks Act nor the failure to comply with Notice 459 under the Consumer Affairs (Unfair Business Practices) Act rendered the public property syndication scheme or the agreements entered into to give effect to the scheme unlawful or void ab initio. The court found that Notice 459 criminalised the withholding of prescribed information but did not invalidate the scheme or related agreements. Similarly, the Banks Act did not provide for the nullity of contracts entered into in contravention of its provisions. The court further held that Dulce Vita CC had locus standi, as its investment was uncontested in the...

Citation
[2013] ZASCA 22
Parties
Appellant: Dulce Vita CC; Respondent: Adv Chris van Coller; Respondent: Jacobus Hendrik Schabort; Respondent: Theodor Willem V D Heever; Respondent: Paul Daneel Kruger; Respondent: Phillip David Berman; Respondent: Mahomed Bharoochi; Respondent: Husein Bharoochi; Respondent: The Liquidators of Spitskop Village (Pty) Ltd (in liquidation); Respondent: Master of the North Gauteng High Court; Respondent: Master of the High Court Cape Town; Respondent: Mr W L Steenkamp; Respondent: Gert Petrus Jacobus van Aswegen; Respondent: M Bharoochi & Another; Respondent: Matthys Isak Cronje NO
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 March 2013
Case Number
192/12
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court (pretoria)
Outcome
Appeal upheld. The rule nisi is discharged with costs against the liquidators of Spitskop Village Properties Ltd (in liquidation).
Judges
Malan, Tshiqi, Majiedt, Petse, Southwood
Legal Topics
Banks Act Section 11, Public Property Syndication Scheme, Unfair Business Practices Act, Nullity of Contracts, Locus Standi, Liquidation Procedure
Banking and Finance Civil Procedure Commercial and Corporate Banks Act Section 11 Public Property Syndication Scheme Unfair Business Practices Act Nullity of Contracts Locus Standi +1 more

Case Brief

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Parties

Dulce Vita CC

Appellant

Adv Chris van Coller

Respondent

Jacobus Hendrik Schabort

Respondent

Theodor Willem V D Heever

Respondent

Paul Daneel Kruger

Respondent

Phillip David Berman

Respondent

Mahomed Bharoochi

Respondent

Husein Bharoochi

Respondent

The Liquidators of Spitskop Village (Pty) Ltd (in liquidation)

Respondent

Master of the North Gauteng High Court

Respondent

Master of the High Court Cape Town

Respondent

Mr W L Steenkamp

Respondent

Gert Petrus Jacobus van Aswegen

Respondent

M Bharoochi & Another

Respondent

Matthys Isak Cronje NO

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court (pretoria)

Legal Issues

  1. 1 Whether the public property syndication scheme operated by Spitskop Village Properties Ltd was unlawful and void ab initio under the Banks Act and the Consumer Affairs (Unfair Business Practices) Act.
  2. 2 Whether the agreements entered into pursuant to the scheme, including investor agreements, trust deed, and mortgage bond, were unlawful and null and void ab initio.
  3. 3 Whether Dulce Vita CC had locus standi to oppose the confirmation of the rule nisi and to appeal.

Ratio Decidendi

The Supreme Court of Appeal held that neither the contravention of section 11 of the Banks Act nor the failure to comply with Notice 459 under the Consumer Affairs (Unfair Business Practices) Act rendered the public property syndication scheme or the agreements entered into to give effect to the scheme unlawful or void ab initio. The court found that Notice 459 criminalised the withholding of prescribed information but did not invalidate the scheme or related agreements. Similarly, the Banks Act did not provide for the nullity of contracts entered into in contravention of its provisions. The court further held that Dulce Vita CC had locus standi, as its investment was uncontested in the...

Court Disposition

Appeal upheld. The rule nisi is discharged with costs against the liquidators of Spitskop Village Properties Ltd (in liquidation).

Orders

  • The appeal is upheld with costs, including the costs of two counsel, to be paid by the liquidators of Spitskop Village Properties Ltd (in liquidation).
  • The order of the court a quo is set aside and replaced with: 'The rule nisi is discharged with costs, such costs to be paid by the liquidators of Spitskop Village Properties Ltd (in liquidation).'