Kate's Hope Game Farm (Pty) Limited v Terblanchehoek Game Farm (Pty) Limited () [1997] ZASCA 69; [1997] 4 All SA 185 (A) (10 September 1997)

Kate's Hope Game Farm (Pty) Limited v Terblanchehoek Game Farm (Pty) Limited () [1997] ZASCA 69; [1997] 4 All SA 185 (A) (10 September 1997)

The Supreme Court of Appeal held that, even assuming the constitution of the Phillip Herd Private Nature Reserve Association was binding on both parties, the relevant clauses did not create an enforceable obligation to erect a boundary fence. Clause 5.10 merely afforded the remaining members an option, not an obligation, to erect a fence, and clause 9.7 imposed a prohibition subject to the Association's consent, which was neither pleaded nor proved by the appellant. The appellant failed to discharge the onus of proving that the alleged agreement was enforceable and that the condition precedent had not been fulfilled. Consequently, section 16 of the Fencing Act applied, and the Board was...

Citation
[1997] ZASCA 69
Parties
Appellant: Kate's Hope Game Farm (Pty) Limited; Respondent: Terblanchehoek Game Farm (Pty) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
10 September 1997
Case Number
334/96
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Mahomed, Vivier, Olivier, Scott, Streicher
Legal Topics
Fencing Act, Give and Take Line, Enforceability of Contract, Juristic Persons Membership, Onus of Proof
Land and Property Civil Procedure Fencing Act Give and Take Line Enforceability of Contract Juristic Persons Membership Onus of Proof

Case Brief

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Parties

Kate's Hope Game Farm (Pty) Limited

Appellant

Terblanchehoek Game Farm (Pty) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division

Legal Issues

  1. 1 Whether the constitution of the Phillip Herd Private Nature Reserve Association constitutes an enforceable agreement between the parties regarding the boundary fence.
  2. 2 Whether section 16 of the Fencing Act 31 of 1963 applies to the dispute between the parties.
  3. 3 Whether the appellant discharged the onus of proving the enforceability of the alleged agreement.

Ratio Decidendi

The Supreme Court of Appeal held that, even assuming the constitution of the Phillip Herd Private Nature Reserve Association was binding on both parties, the relevant clauses did not create an enforceable obligation to erect a boundary fence. Clause 5.10 merely afforded the remaining members an option, not an obligation, to erect a fence, and clause 9.7 imposed a prohibition subject to the Association's consent, which was neither pleaded nor proved by the appellant. The appellant failed to discharge the onus of proving that the alleged agreement was enforceable and that the condition precedent had not been fulfilled. Consequently, section 16 of the Fencing Act applied, and the Board was...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • Section 16 of the Fencing Act 31 of 1963 as amended applies to the farms of Terblanchehoek and Kate's Hope.
  • A Board properly constituted in terms of section 16 of the Act is entitled to proceed with the hearing in accordance with the provisions of section 16 of the Act.