Friedman N.O. and Another v Moolman (821/2017) [2018] ZAECPEHC 5 (22 February 2018)

Friedman N.O. and Another v Moolman (821/2017) [2018] ZAECPEHC 5 (22 February 2018)

The agreement of sale between the applicants and the respondent is void ab initio due to non-compliance with section 2(1) of the Alienation of Land Act, as the property was not properly identified or described. The subsequent land survey revealed that the property was not as described and ownership was unclear, resulting in a lack of consensus. The respondent signed the agreement and received the purchase price, which she loaned to her grandson, but she cannot escape liability by pleading a loan or lease. Section 28 of the Alienation of Land Act entitles the applicants to recover the purchase price and interest, as the respondent was enriched at their expense. The respondent's reliance on...

Citation
[2018] ZAECPEHC 5
Parties
Applicant: Gerald Jack Friedman N.O.; Applicant: Beverly Gay Friedman N.O.; Respondent: Joyce D Moolman
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
22 February 2018
Case Number
821/2017
Procedural Posture
Civil Application / Judgment
Outcome
Application granted. The respondent is ordered to repay the applicants the purchase price with interest and costs.
Judges
E Revelas
Legal Topics
Alienation of Land Act, Condictio Indebiti, Statutory Enrichment, Identification of Property, Repudiation, Formal Requirements for Sale
Land and Property Civil Procedure Alienation of Land Act Condictio Indebiti Statutory Enrichment Identification of Property Repudiation Formal Requirements for Sale

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Parties

Gerald Jack Friedman N.O.

Applicant

Beverly Gay Friedman N.O.

Applicant

Joyce D Moolman

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the agreement of sale between the applicants and respondent is null and void for failure to comply with section 2(1) of the Alienation of Land Act.
  2. 2 Whether the agreement failed for want of compliance with the Subdivision of Agricultural Land Act.
  3. 3 Whether the agreement was consensually cancelled or repudiated and accepted by the trust.

Ratio Decidendi

The agreement of sale between the applicants and the respondent is void ab initio due to non-compliance with section 2(1) of the Alienation of Land Act, as the property was not properly identified or described. The subsequent land survey revealed that the property was not as described and ownership was unclear, resulting in a lack of consensus. The respondent signed the agreement and received the purchase price, which she loaned to her grandson, but she cannot escape liability by pleading a loan or lease. Section 28 of the Alienation of Land Act entitles the applicants to recover the purchase price and interest, as the respondent was enriched at their expense. The respondent's reliance on...

Court Disposition

Application granted. The respondent is ordered to repay the applicants the purchase price with interest and costs.

Orders

  • The respondent is directed to pay the applicants, in their capacities as trustees, the sum of R1 325 000.00, together with interest thereon at the legal rate a tempore morae.
  • The respondent is directed to pay the costs of this application.