Nel v Mulder and Others (49102/2013) [2014] ZAGPPHC 816 (16 October 2014)

Nel v Mulder and Others (49102/2013) [2014] ZAGPPHC 816 (16 October 2014)

The court found that the applicant's right of pre-emption under the lease agreement was violated when the first respondent sold and transferred the properties to the Joey Fourie Trust without affording the applicant the opportunity to exercise his option. Both the seller and the trust acted with knowledge of the applicant's rights, and their conduct amounted to a fraudulent conspiracy to defeat those rights. The doctrine of notice and established case law support the setting aside of such transactions and restoration of the status quo ante. The applicant's conduct in paying rent into trust pending the outcome of the litigation did not constitute repudiation of the lease agreement, and the...

Citation
[2014] ZAGPPHC 816
Parties
Applicant: Deon Nel; Respondent: Emanuel Mulder; Respondent: Josef Markus Fourie N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 October 2014
Case Number
49102/2013
Procedural Posture
Urgent Application / Judgment
Outcome
Application granted. The sale agreement and transfer of the properties to the Joey Fourie Trust are set aside. Costs awarded against the trustees.
Judges
W R C Prinsloo
Legal Topics
Right of Pre Emption, Double Sale, Specific Performance, Cancellation of Transfer, Notice Doctrine
Land and Property Civil Procedure Right of Pre Emption Double Sale Specific Performance Cancellation of Transfer Notice Doctrine

Case Brief

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Parties

Deon Nel

Applicant

Emanuel Mulder

Respondent

Josef Markus Fourie N.O.

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the sale and transfer of the immovable properties to the Joey Fourie Trust violated the applicant's right of pre-emption under the lease agreement.
  2. 2 Whether the applicant is entitled to have the sale agreement and transfer set aside and the status quo ante restored.
  3. 3 Whether the applicant's conduct constituted repudiation of the lease agreement, justifying cancellation and eviction.

Ratio Decidendi

The court found that the applicant's right of pre-emption under the lease agreement was violated when the first respondent sold and transferred the properties to the Joey Fourie Trust without affording the applicant the opportunity to exercise his option. Both the seller and the trust acted with knowledge of the applicant's rights, and their conduct amounted to a fraudulent conspiracy to defeat those rights. The doctrine of notice and established case law support the setting aside of such transactions and restoration of the status quo ante. The applicant's conduct in paying rent into trust pending the outcome of the litigation did not constitute repudiation of the lease agreement, and the...

Court Disposition

Application granted. The sale agreement and transfer of the properties to the Joey Fourie Trust are set aside. Costs awarded against the trustees.

Orders

  • The sale agreement dated 29 March 2012 between the first respondent and the second, third, and fourth respondents, transferring the specified portions of Grootdoorns 172 to the Joey Fourie Trust, is declared null and void.
  • The Registrar of Deeds Pretoria is ordered, in terms of section 6(1) of Act 47 of 1937, to cancel the deed of transfer under title deed T34277/12 for the specified properties.