Ivory Park Trading 77 (Edms) Bpk v Van Deventer and Another (15473/10) [2010] ZAGPPHC 169 (22 September 2010)

Ivory Park Trading 77 (Edms) Bpk v Van Deventer and Another (15473/10) [2010] ZAGPPHC 169 (22 September 2010)

The court held that, regardless of whether the clause in the title deed constitutes an option or a right of pre-emption, the first defendant was obliged to give the second defendant the opportunity to purchase the property once he decided to sell. The particulars of claim do not allege that such an option or offer was made to the second defendant, nor that the second defendant failed to exercise the option or rejected the offer. However, the plaintiff alleges that the second defendant became aware of the sale and did nothing to enforce his rights, amounting to a waiver. The court found that this allegation is sufficient to establish a cause of action, and the exception must be dismissed.

Citation
[2010] ZAGPPHC 169
Parties
Plaintiff: Ivory Park Trading 77 (Edms) Bpk; Defendant: Johannes Jacobus Van Deventer; Defendant: Christoffel Wessel Jacobus Van Deventer
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 September 2010
Case Number
15473/10
Procedural Posture
Exception Application / Exception Raised by Second Defendant Against Particulars of Claim
Outcome
Exception dismissed with costs.
Judges
Hiemstra
Legal Topics
Right of Pre Emption, Exception to Particulars of Claim, Specific Performance, Waiver of Rights
Land and Property Civil Procedure Right of Pre Emption Exception to Particulars of Claim Specific Performance Waiver of Rights

Case Brief

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Parties

Ivory Park Trading 77 (Edms) Bpk

Plaintiff

Johannes Jacobus Van Deventer

Defendant

Christoffel Wessel Jacobus Van Deventer

Defendant

Procedural Posture

Exception Application / Exception Raised by Second Defendant Against Particulars of Claim

Legal Issues

  1. 1 Does the plaintiff's particulars of claim disclose a valid cause of action against the second defendant?
  2. 2 Is the clause in the title deed an option or a right of pre-emption?
  3. 3 Has the second defendant waived his right to exercise the option or right of pre-emption?

Ratio Decidendi

The court held that, regardless of whether the clause in the title deed constitutes an option or a right of pre-emption, the first defendant was obliged to give the second defendant the opportunity to purchase the property once he decided to sell. The particulars of claim do not allege that such an option or offer was made to the second defendant, nor that the second defendant failed to exercise the option or rejected the offer. However, the plaintiff alleges that the second defendant became aware of the sale and did nothing to enforce his rights, amounting to a waiver. The court found that this allegation is sufficient to establish a cause of action, and the exception must be dismissed.

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed with costs.