Orffer NO and Others v Orffer NO and Others (8064/2017) [2017] ZAWCHC 102 (15 September 2017)

Orffer NO and Others v Orffer NO and Others (8064/2017) [2017] ZAWCHC 102 (15 September 2017)

The court held that the settlement agreement referred to a specific application for a specific road (the Northern road) and did not impose an obligation on the applicants to exhaust all possible alternatives or make repeated applications for access. The refusal by the Department of Transport and Public Works to approve the application for the Northern road due to non-compliance with legal requirements constituted legal impossibility as contemplated by clause 16 of the agreement. The court found that the suspensive condition had been fulfilled, entitling the applicants to refer the disputes to arbitration. The respondent's interpretation would lead to insensible and uncommercial results,...

Citation
[2017] ZAWCHC 102
Parties
Applicant: Frederick Christoffel Orffer N.O.; Applicant: Anél Orffer N.O.; Applicant: Arnoldus Jacobus Stofberg N.O.; Applicant: Droomland Landgoed (Pty) Ltd; Respondent: Christiaan Johannes Orffer N.O.; Respondent: Elmien Orffer; Respondent: Arnoldus Jacobus Stofberg N.O.; Respondent: Die Orffer Landgoed (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 September 2017
Case Number
8064/2017
Procedural Posture
Civil Application / Declaratory Application Following Settlement Agreement and Interdict Proceedings
Outcome
Application granted. Declaratory order issued in favour of the applicants. Costs awarded against the respondents.
Judges
Bozalek
Legal Topics
Servitudinal Right of Way, Settlement Agreement Interpretation, Suspensive Condition, Arbitration Referral, Good Faith Obligation
Land and Property Civil Procedure Servitudinal Right of Way Settlement Agreement Interpretation Suspensive Condition Arbitration Referral Good Faith Obligation

Case Brief

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Parties

Frederick Christoffel Orffer N.O.

Applicant

Anél Orffer N.O.

Applicant

Arnoldus Jacobus Stofberg N.O.

Applicant

Droomland Landgoed (Pty) Ltd

Applicant

Christiaan Johannes Orffer N.O.

Respondent

Elmien Orffer

Respondent

Arnoldus Jacobus Stofberg N.O.

Respondent

Die Orffer Landgoed (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Declaratory Application Following Settlement Agreement and Interdict Proceedings

Legal Issues

  1. 1 What is the proper interpretation of the suspensive condition in clause 16 of the settlement agreement?
  2. 2 Has the suspensive condition been fulfilled, entitling the applicants to refer disputes to arbitration?

Ratio Decidendi

The court held that the settlement agreement referred to a specific application for a specific road (the Northern road) and did not impose an obligation on the applicants to exhaust all possible alternatives or make repeated applications for access. The refusal by the Department of Transport and Public Works to approve the application for the Northern road due to non-compliance with legal requirements constituted legal impossibility as contemplated by clause 16 of the agreement. The court found that the suspensive condition had been fulfilled, entitling the applicants to refer the disputes to arbitration. The respondent's interpretation would lead to insensible and uncommercial results,...

Court Disposition

Application granted. Declaratory order issued in favour of the applicants. Costs awarded against the respondents.

Orders

  • The suspensive condition contained in paragraph 16 of the court order granted in case number 21972/2016 on 21 November 2016 has been fulfilled.
  • The applicants are entitled to refer the disputes, as referred to in paragraph 16 of the court order, to arbitration in terms of paragraphs 16.1, 17 and 18 of the court order.