Krauze v Van Wyk en Andere (95/85) [1985] ZASCA 79; [1986] 1 All SA 293 (A) (12 September 1985)

Krauze v Van Wyk en Andere (95/85) [1985] ZASCA 79; [1986] 1 All SA 293 (A) (12 September 1985)

The court held that the appellant's right of pre-emption, granted in 1975, matured upon receipt of the owner's notice of intention to sell. The subsequent sale agreement, even if concluded on terms differing from the original pre-emption, did not extinguish the appellant's priority. The effect of entering into the sale contract was to convert the appellant's right to purchase into a right to claim transfer, which predated the second respondent's exercise of his option. The novation clause in the later contract did not amount to a waiver of the appellant's priority, as it merely replaced the earlier sale agreement with a new one, leaving the appellant's priority intact. The principle qui...

Citation
[1985] ZASCA 79
Parties
Appellant: Petrus Johannes Krauze; Respondent: Jacobus Abraham van Wyk; Respondent: Hercules Willem Strauss; Respondent: Die Registrateur van Aktes
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
12 September 1985
Case Number
95/85
Procedural Posture
Civil Appeal / Appeal Against Refusal of Interim Interdict in High Court
Outcome
Appeal upheld with costs against the second respondent. Interim interdict granted pending institution of action by the appellant.
Judges
Corbett, Trengove, Hefer, Grosskopf, Boshoff
Legal Topics
Successive Sales, Interdict, Specific Performance, Priority of Rights
Land and Property Civil Procedure Successive Sales Interdict Specific Performance Priority of Rights

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 8 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Petrus Johannes Krauze

Appellant

Jacobus Abraham van Wyk

Respondent

Hercules Willem Strauss

Respondent

Die Registrateur van Aktes

Respondent

Procedural Posture

Civil Appeal / Appeal Against Refusal of Interim Interdict in High Court

Legal Issues

  1. 1 Whether the appellant's right of pre-emption over the property takes precedence over the subsequent option granted to the second respondent.
  2. 2 Whether the conclusion of a sale contract on different terms than the original pre-emption right extinguished the appellant's priority.
  3. 3 Whether the clause in the later contract constituted a novation that removed the appellant's priority.

Ratio Decidendi

The court held that the appellant's right of pre-emption, granted in 1975, matured upon receipt of the owner's notice of intention to sell. The subsequent sale agreement, even if concluded on terms differing from the original pre-emption, did not extinguish the appellant's priority. The effect of entering into the sale contract was to convert the appellant's right to purchase into a right to claim transfer, which predated the second respondent's exercise of his option. The novation clause in the later contract did not amount to a waiver of the appellant's priority, as it merely replaced the earlier sale agreement with a new one, leaving the appellant's priority intact. The principle qui...

Court Disposition

Appeal upheld with costs against the second respondent. Interim interdict granted pending institution of action by the appellant.

Orders

  • The first respondent is interdicted from transferring the property known as Gamasep No. 485 to the second respondent or any other person, or encumbering it, pending the action to be instituted by the applicant for transfer.
  • The second respondent is interdicted from taking transfer of the property pending the said action.