Klub Lekkerrus/Libertas v Troye Villa (Pty) Ltd and Others (260/10) [2011] ZASCA 101; [2011] 3 All SA 597 (SCA) (1 June 2011)

Klub Lekkerrus/Libertas v Troye Villa (Pty) Ltd and Others (260/10) [2011] ZASCA 101; [2011] 3 All SA 597 (SCA) (1 June 2011)

The Supreme Court of Appeal held that the amalgamation of Klub Lekkerrus and Klub Libertas did not terminate the original sale agreements for shares in the second and third plaintiffs. Instead, new tacit agreements on the same terms were concluded between the Club and Mr van Tonder, unaffected by the non-variation clauses. The Club became the lawful owner of the shares, and the share registers should be rectified accordingly. The claim for payment under clause 2.5 of agreement 'G' failed due to lack of authority and because the clause was not severable from the rest of the agreement. The lease agreements were validly terminated, but the Club, as sole shareholder, controls the...

Citation
[2011] ZASCA 101
Parties
Appellant: Klub Lekkerrus/Libertas; Respondent: Troye Villa (Pty) Ltd; Respondent: Lekkerrus Warmwaterbron (Pty) Ltd; Respondent: Libertas Minerale Bron (Pty) Ltd; Respondent: Wernico (Pty) Ltd; Respondent: Lekkerrus Bestuursonderneming CC; Respondent: Johanna Jacoba van Tonder; Respondent: Herman Daniel Woite
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 June 2011
Case Number
260/10
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court (pretoria), Judgment of Makgoba J
Outcome
Appeal upheld with costs against the first, sixth, and seventh respondents jointly and severally, including costs of two counsel. The order of the court below is substituted.
Judges
Harms, Malan, Shongwe, Majiedt, Meer
Legal Topics
Sale of Shares, Tacit Agreement, Non Variation Clause, Rectification of Share Register, Voluntary Association Amalgamation
Commercial and Corporate Land and Property Sale of Shares Tacit Agreement Non Variation Clause Rectification of Share Register Voluntary Association Amalgamation

Case Brief

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Parties

Klub Lekkerrus/Libertas

Appellant

Troye Villa (Pty) Ltd

Respondent

Lekkerrus Warmwaterbron (Pty) Ltd

Respondent

Libertas Minerale Bron (Pty) Ltd

Respondent

Wernico (Pty) Ltd

Respondent

Lekkerrus Bestuursonderneming CC

Respondent

Johanna Jacoba van Tonder

Respondent

Herman Daniel Woite

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court (pretoria), Judgment of Makgoba J

Legal Issues

  1. 1 Whether the amalgamation of two voluntary associations terminated existing sale agreements for shares.
  2. 2 Whether new tacit agreements replaced the original sale agreements despite non-variation clauses.
  3. 3 Whether the Club is entitled to rectification of the share registers to reflect ownership of shares.

Ratio Decidendi

The Supreme Court of Appeal held that the amalgamation of Klub Lekkerrus and Klub Libertas did not terminate the original sale agreements for shares in the second and third plaintiffs. Instead, new tacit agreements on the same terms were concluded between the Club and Mr van Tonder, unaffected by the non-variation clauses. The Club became the lawful owner of the shares, and the share registers should be rectified accordingly. The claim for payment under clause 2.5 of agreement 'G' failed due to lack of authority and because the clause was not severable from the rest of the agreement. The lease agreements were validly terminated, but the Club, as sole shareholder, controls the...

Court Disposition

Appeal upheld with costs against the first, sixth, and seventh respondents jointly and severally, including costs of two counsel. The order of the court below is substituted.

Orders

  • Mr H D Woite is joined as the eighth plaintiff in his capacity as executor in the estate of the late P J H van Tonder, estate no 14453/97.
  • It is declared that the first defendant and its members are, with effect from 10 August 2007, not entitled to any right of access, possession, control and occupation of any of the properties belonging to first and fourth plaintiffs, namely Portions 21, 22, 23, 24 and 25 of the farm Welgevonden 343 district...