Scholtz v Scholtz (209/2011) [2012] ZASCA 9; 2012 (5) SA 230 (SCA); [2012] 2 All SA 553 (SCA) (14 March 2012)

Scholtz v Scholtz (209/2011) [2012] ZASCA 9; 2012 (5) SA 230 (SCA); [2012] 2 All SA 553 (SCA) (14 March 2012)

The Supreme Court of Appeal held that the absence of an explicit term regarding liability for the mortgage bond in the deed of donation does not automatically render the donation agreement invalid under s 5 of the General Law Amendment Act 50 of 1956. The court found that material terms may be incorporated by proper interpretation of the express terms or by way of tacit terms, which are considered part of the written agreement. The respondent's defence failed because he did not establish that the omission of the bond liability term rendered the agreement void ab initio. The court set aside the order of the court a quo and dismissed the respondent's defence in paragraph 9 of his plea.

Citation
[2012] ZASCA 9
Parties
Appellant: Elize Scholtz; Respondent: Theodorus Ernest Scholtz
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
14 March 2012
Case Number
209/2011
Procedural Posture
Civil Appeal / Appeal From Western Cape High Court, Cape Town
Outcome
Appeal upheld; respondent's defence dismissed; costs awarded to appellant including costs of two counsel.
Judges
Brand, Cloete, Cachalia, Tshiqi, Plasket
Legal Topics
Donation of Immovable Property, Formalities of Contracts, Mortgage Bond Liability, Specific Performance, Tacit Terms, Interpretation of Contracts
Family and Children Land and Property Civil Procedure Donation of Immovable Property Formalities of Contracts Mortgage Bond Liability Specific Performance Tacit Terms +1 more

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Parties

Elize Scholtz

Appellant

Theodorus Ernest Scholtz

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape High Court, Cape Town

Legal Issues

  1. 1 Whether the donation agreement is invalid for failure to record a material term regarding liability for the mortgage bond.
  2. 2 Whether s 5 of the General Law Amendment Act 50 of 1956 requires all material terms, including bond liability, to be expressly recorded in the deed of donation.
  3. 3 Whether the absence of a term regarding bond liability renders the donation void ab initio.

Ratio Decidendi

The Supreme Court of Appeal held that the absence of an explicit term regarding liability for the mortgage bond in the deed of donation does not automatically render the donation agreement invalid under s 5 of the General Law Amendment Act 50 of 1956. The court found that material terms may be incorporated by proper interpretation of the express terms or by way of tacit terms, which are considered part of the written agreement. The respondent's defence failed because he did not establish that the omission of the bond liability term rendered the agreement void ab initio. The court set aside the order of the court a quo and dismissed the respondent's defence in paragraph 9 of his plea.

Court Disposition

Appeal upheld; respondent's defence dismissed; costs awarded to appellant including costs of two counsel.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the court a quo is set aside and replaced with: (a) The defence raised in paragraph 9 of the defendant's plea is dismissed. (b) The defendant is to pay the costs of the preliminary proceedings arising from that defence.