Hirschowitz v Moolman and Others (58/85) [1985] ZASCA 38; [1985] 2 All SA 319 (A) (24 May 1985)

Hirschowitz v Moolman and Others (58/85) [1985] ZASCA 38; [1985] 2 All SA 319 (A) (24 May 1985)

The Supreme Court of Appeal held that the right of pre-emption claimed by the appellant could not be enforced against the second respondent because the contract granting the right was not signed by the second respondent, as required by the Formalities in respect of Contracts of Sale of Land Act 71 of 1969. The Court reasoned that, even if the right of pre-emption had come into operation upon the grant of the option to Dorstfontein, the absence of compliance with statutory formalities rendered the right unenforceable. The Court further found that the appellant's claim for specific performance, requiring the respondents to offer the farm for sale, could not succeed in the absence of a...

Citation
[1985] ZASCA 38
Parties
Appellant: Himie Norman Hirschowitz; Respondent: Pieter Benjamin Moolman; Respondent: Stephanus Jacobus Daniel Moolman; Respondent: Dorstfontein Coal Mines Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
24 May 1985
Case Number
58/85
Procedural Posture
Civil Appeal / Appeal From Dismissal of Application for Enforcement of Right of Pre Emption
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Corbett, Miller, Cillié, Van Heerden, Smalberger
Legal Topics
Right of Pre Emption, Specific Performance, Formalities in Contracts of Sale, Pactum De Contrahendo, Alienation of Land, Notice and Successor Liability
Land and Property Civil Procedure Right of Pre Emption Specific Performance Formalities in Contracts of Sale Pactum De Contrahendo Alienation of Land Notice and Successor Liability

Case Brief

Summary, issues, holding and outcome

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Parties

Himie Norman Hirschowitz

Appellant

Pieter Benjamin Moolman

Respondent

Stephanus Jacobus Daniel Moolman

Respondent

Dorstfontein Coal Mines Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Application for Enforcement of Right of Pre Emption

Legal Issues

  1. 1 Whether the right of pre-emption in respect of the farm could be enforced against the respondents.
  2. 2 Whether the Formalities in respect of Contracts of Sale of Land Act 71 of 1969 constituted an insuperable obstacle to the enforcement of the right of pre-emption.
  3. 3 Whether second respondent was legally bound by the lease containing the right of pre-emption.

Ratio Decidendi

The Supreme Court of Appeal held that the right of pre-emption claimed by the appellant could not be enforced against the second respondent because the contract granting the right was not signed by the second respondent, as required by the Formalities in respect of Contracts of Sale of Land Act 71 of 1969. The Court reasoned that, even if the right of pre-emption had come into operation upon the grant of the option to Dorstfontein, the absence of compliance with statutory formalities rendered the right unenforceable. The Court further found that the appellant's claim for specific performance, requiring the respondents to offer the farm for sale, could not succeed in the absence of a...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

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