Eybers NO and Others v Beaufort West Minerals (Edms) Bpk (11584/10) [2011] ZAWCHC 26 (24 February 2011)

Eybers NO and Others v Beaufort West Minerals (Edms) Bpk (11584/10) [2011] ZAWCHC 26 (24 February 2011)

The court found that the applicants, as trustees, were properly authorised to bring the application for specific performance, based on written resolutions and confirmatory affidavits. The sale agreement and its addenda made the right to cancel contingent on the failure to obtain a 60% loan within 60 days of the agreement. Both parties had, by their conduct, waived any right to cancel based on non-fulfilment within that period. The respondent's later attempt to cancel the agreement was invalid, as the contract did not provide for cancellation beyond the specified time frame. Furthermore, the respondent failed to prove that it was unable to obtain the required loan, as its application was...

Citation
[2011] ZAWCHC 26
Parties
Applicant: Leon Roelof Eybers N.O; Applicant: Karen Sarah Eybers N.O; Applicant: Albert Eybers; Respondent: Beaufort West Minerals (Edms) Beperk
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 February 2011
Case Number
11584/10
Procedural Posture
Urgent Application / First Instance
Outcome
Application granted. The sale agreement remains in force and the respondent is ordered to specifically perform its obligations and pay the applicants' costs.
Judges
Fourie, R
Legal Topics
Specific Performance, Trustee Locus Standi, Contract Cancellation, Sale of Land
Land and Property Civil Procedure Specific Performance Trustee Locus Standi Contract Cancellation Sale of Land

Case Brief

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Parties

Leon Roelof Eybers N.O

Applicant

Karen Sarah Eybers N.O

Applicant

Albert Eybers

Applicant

Beaufort West Minerals (Edms) Beperk

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether the applicants have locus standi to bring the application for specific performance on behalf of the trust.
  2. 2 Whether the respondent validly cancelled the sale agreement based on non-fulfilment of the financing term.

Ratio Decidendi

The court found that the applicants, as trustees, were properly authorised to bring the application for specific performance, based on written resolutions and confirmatory affidavits. The sale agreement and its addenda made the right to cancel contingent on the failure to obtain a 60% loan within 60 days of the agreement. Both parties had, by their conduct, waived any right to cancel based on non-fulfilment within that period. The respondent's later attempt to cancel the agreement was invalid, as the contract did not provide for cancellation beyond the specified time frame. Furthermore, the respondent failed to prove that it was unable to obtain the required loan, as its application was...

Court Disposition

Application granted. The sale agreement remains in force and the respondent is ordered to specifically perform its obligations and pay the applicants' costs.

Orders

  • An order is granted in terms of paragraphs 1, 2 and 4 of the applicants' notice of motion dated 24 June 2010.
  • The respondent is ordered to pay the applicants' costs of the application.