Shanmugam v Peter N.O and Others (11638/2015) [2016] ZAKZDHC 16 (20 April 2016)

Shanmugam v Peter N.O and Others (11638/2015) [2016] ZAKZDHC 16 (20 April 2016)

The court found that the sale agreement was invalid as it was not signed by all liquidators acting jointly, specifically lacking the authority of the third liquidator who had been appointed prior to the agreement. There was no evidence of ratification by the third liquidator. Even if the agreement had been validly concluded, its subsequent cancellation due to breach by the applicant was valid, as the applicant accepted he was in breach and the cancellation was ratified by the third liquidator through his participation in a subsequent sale. Furthermore, any claim for transfer of the property was extinguished by prescription, as more than three years had passed since the cancellation and...

Citation
[2016] ZAKZDHC 16
Parties
Applicant: Kriveshan Shanmugam; Respondent: Lunga Cosmo Peter N.O; Respondent: C B St Clair Cooper N.O; Respondent: Lebongang Micheal Moloto N.O; Respondent: Nicola Cronje; Respondent: Peter Maskel Auctioneers; Respondent: Strauss Daly Attorneys
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
20 April 2016
Case Number
11638/2015
Procedural Posture
Urgent Application / Opposed Motion for Confirmation or Discharge of Rule Nisi
Outcome
Application dismissed; rule nisi discharged with costs, including reserved costs and costs occasioned by employment of senior counsel.
Judges
Ploos van Amstel
Legal Topics
Alienation of Land Act, Liquidation Authority, Interdict Pendente Lite, Prescription, Contract Cancellation
Land and Property Civil Procedure Alienation of Land Act Liquidation Authority Interdict Pendente Lite Prescription Contract Cancellation

Case Brief

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Parties

Kriveshan Shanmugam

Applicant

Lunga Cosmo Peter N.O

Respondent

C B St Clair Cooper N.O

Respondent

Lebongang Micheal Moloto N.O

Respondent

Nicola Cronje

Respondent

Peter Maskel Auctioneers

Respondent

Strauss Daly Attorneys

Respondent

Procedural Posture

Urgent Application / Opposed Motion for Confirmation or Discharge of Rule Nisi

Legal Issues

  1. 1 Whether the sale agreement for the property was validly concluded by the liquidators.
  2. 2 Whether the agreement was properly cancelled due to breach by the applicant.
  3. 3 Whether the applicant's claim for transfer of the property has prescribed.

Ratio Decidendi

The court found that the sale agreement was invalid as it was not signed by all liquidators acting jointly, specifically lacking the authority of the third liquidator who had been appointed prior to the agreement. There was no evidence of ratification by the third liquidator. Even if the agreement had been validly concluded, its subsequent cancellation due to breach by the applicant was valid, as the applicant accepted he was in breach and the cancellation was ratified by the third liquidator through his participation in a subsequent sale. Furthermore, any claim for transfer of the property was extinguished by prescription, as more than three years had passed since the cancellation and...

Court Disposition

Application dismissed; rule nisi discharged with costs, including reserved costs and costs occasioned by employment of senior counsel.

Orders

  • The rule nisi is discharged.
  • The applicant is to pay the costs of the application, including those reserved on 23 November and 8 December 2015 and those occasioned by the employment of senior counsel.