Jacobs N.O and Others v Salut La Vie Estate (Pty) Ltd (1146/2016) [2017] ZANCHC 11 (10 February 2017)

Jacobs N.O and Others v Salut La Vie Estate (Pty) Ltd (1146/2016) [2017] ZANCHC 11 (10 February 2017)

The court held that the particulars of claim, when read as a whole and assuming the pleaded facts are established, disclose a cause of action. The excipients had not performed fully under the addendum, and section 28(2) of the Alienation of Land Act does not validate the contract ab initio in such circumstances. The absence of the third trustee's signature is not a mere formality but affects the Trust's ability to be bound, resulting in a lack of consensus and no real agreement. Evidence may be led to establish these facts at trial. The exception was therefore dismissed, as it could not be said that no cause of action was disclosed on every reasonable interpretation of the particulars of...

Citation
[2017] ZANCHC 11
Parties
Applicant: Nicolaas Burger Jacobs N.O.; Applicant: Christiaan Jacobus Kirstein N.O.; Applicant: Lezmari Jacobs N.O.; Respondent: Salut La Vie Estate (Pty) Ltd
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
10 February 2017
Case Number
1146/2016
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception dismissed; costs awarded against excipients.
Judges
Erasmus, AJ
Legal Topics
Alienation of Land Act, Trust Representation, Formal Defects in Contract, Exception Procedure, Declaratory Relief
Land and Property Civil Procedure Alienation of Land Act Trust Representation Formal Defects in Contract Exception Procedure Declaratory Relief

Case Brief

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Parties

Nicolaas Burger Jacobs N.O.

Applicant

Christiaan Jacobus Kirstein N.O.

Applicant

Lezmari Jacobs N.O.

Applicant

Salut La Vie Estate (Pty) Ltd

Respondent

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the particulars of claim disclose a cause of action for retransfer of property based on a void underlying agreement.
  2. 2 Whether the absence of a trustee's signature renders the addendum and transfer void under section 2(1) of the Alienation of Land Act.
  3. 3 Whether section 28 of the Alienation of Land Act bars recovery where the transferee has not performed in full.

Ratio Decidendi

The court held that the particulars of claim, when read as a whole and assuming the pleaded facts are established, disclose a cause of action. The excipients had not performed fully under the addendum, and section 28(2) of the Alienation of Land Act does not validate the contract ab initio in such circumstances. The absence of the third trustee's signature is not a mere formality but affects the Trust's ability to be bound, resulting in a lack of consensus and no real agreement. Evidence may be led to establish these facts at trial. The exception was therefore dismissed, as it could not be said that no cause of action was disclosed on every reasonable interpretation of the particulars of...

Court Disposition

Exception dismissed; costs awarded against excipients.

Orders

  • The exception raised by the first, second and third defendants is dismissed.
  • The first, second and third defendants are ordered to pay the costs of the exception, including the costs of two counsel, jointly and severally, the one paying the other to be absolved.