Kuswayo and Another v Similanie and Another (CA&R 39/08) [2010] ZANCHC 38 (3 September 2010)

Kuswayo and Another v Similanie and Another (CA&R 39/08) [2010] ZANCHC 38 (3 September 2010)

The court found that the restrictive condition in the title deed was an unequivocal and express prohibition on the sale of the property for five years from the date of donation, and not a mere right of pre-emption. The condition was inserted for the benefit of the municipality, which could potentially waive it. An affidavit from a municipal official alleged that a council resolution to waive the condition existed, and this evidence was not disputed by the applicants. The court held that there are reasonable prospects that the Supreme Court of Appeal could find that the municipality was entitled to waive the prohibition, and therefore granted leave to appeal. The costs of the application...

Citation
[2010] ZANCHC 38
Parties
Applicant: Leon Kuswayo; Applicant: Regina Kuswayo; Respondent: Joseph Similanie; Respondent: Elizabeth Similanie
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
3 September 2010
Case Number
CA&R 39/08
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal
Outcome
Leave to appeal to the Supreme Court of Appeal is granted to the respondents against the entirety of the judgment and order of Bosielo WnRP and Steyn WnR, as corrected.
Judges
SA Majiedt, CC Williams
Legal Topics
Sale of Land, Restrictive Conditions, Leave to Appeal, Registrable Real Rights
Land and Property Civil Procedure Sale of Land Restrictive Conditions Leave to Appeal Registrable Real Rights

Case Brief

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Parties

Leon Kuswayo

Applicant

Regina Kuswayo

Applicant

Joseph Similanie

Respondent

Elizabeth Similanie

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal

Legal Issues

  1. 1 Whether the restrictive condition in the title deed constitutes an absolute prohibition on sale or merely a right of pre-emption in favour of the municipality.
  2. 2 Whether the municipality, as beneficiary of the restrictive condition, could legally waive the prohibition on sale.
  3. 3 Whether there are reasonable prospects of success on appeal to the Supreme Court of Appeal.

Ratio Decidendi

The court found that the restrictive condition in the title deed was an unequivocal and express prohibition on the sale of the property for five years from the date of donation, and not a mere right of pre-emption. The condition was inserted for the benefit of the municipality, which could potentially waive it. An affidavit from a municipal official alleged that a council resolution to waive the condition existed, and this evidence was not disputed by the applicants. The court held that there are reasonable prospects that the Supreme Court of Appeal could find that the municipality was entitled to waive the prohibition, and therefore granted leave to appeal. The costs of the application...

Court Disposition

Leave to appeal to the Supreme Court of Appeal is granted to the respondents against the entirety of the judgment and order of Bosielo WnRP and Steyn WnR, as corrected.

Orders

  • Leave to appeal to the Supreme Court of Appeal is granted to the respondents against the entirety of the judgment and order of Bosielo WnRP and Steyn WnR, as corrected.
  • The costs of the application for leave to appeal are reserved for determination by the Supreme Court of Appeal.