Similanie and Another v Kuswayo and Another (613/2010) [2011] ZASCA 79 (27 May 2011)

Similanie and Another v Kuswayo and Another (613/2010) [2011] ZASCA 79 (27 May 2011)

The Supreme Court of Appeal held that the restrictive condition against alienation was imposed for the benefit of the Namakwa municipality and could be waived by it, even informally. The letter from Ms Faro, an authorised municipal official, clearly indicated the municipality's intention to waive the condition, and the respondents did not challenge her authority or the validity of the waiver in their answering affidavit. The absence of a formal council resolution did not invalidate the waiver. The agreement of sale was valid and enforceable, and the respondents were obliged to transfer the property to the appellants. The appeal was upheld, and the order of the court below was set aside.

Citation
[2011] ZASCA 79
Parties
Appellant: Joseph Similanie; Appellant: Elizabeth Similanie; Respondent: Leon Kuswayo; Respondent: Regina Kuswayo
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 May 2011
Case Number
613/2010
Procedural Posture
Civil Appeal / Appeal From Northern Cape High Court
Outcome
Appeal upheld with costs, including costs of the application for leave to appeal. The order of the court below is set aside and replaced with an order dismissing the appeal with costs.
Judges
Navsa, Cloete, Malan
Legal Topics
Restraint Against Alienation, Waiver of Registered Condition, Sale of Land, Enforceability of Contract
Land and Property Civil Procedure Restraint Against Alienation Waiver of Registered Condition Sale of Land Enforceability of Contract

Case Brief

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Parties

Joseph Similanie

Appellant

Elizabeth Similanie

Appellant

Leon Kuswayo

Respondent

Regina Kuswayo

Respondent

Procedural Posture

Civil Appeal / Appeal From Northern Cape High Court

Legal Issues

  1. 1 Whether the sale agreement between the respondents and appellants was invalid due to a restraint against alienation registered against the title deed.
  2. 2 Whether the Namakwa municipality validly waived the restrictive condition imposed for its benefit.
  3. 3 Whether the absence of a formal council resolution invalidated the waiver.

Ratio Decidendi

The Supreme Court of Appeal held that the restrictive condition against alienation was imposed for the benefit of the Namakwa municipality and could be waived by it, even informally. The letter from Ms Faro, an authorised municipal official, clearly indicated the municipality's intention to waive the condition, and the respondents did not challenge her authority or the validity of the waiver in their answering affidavit. The absence of a formal council resolution did not invalidate the waiver. The agreement of sale was valid and enforceable, and the respondents were obliged to transfer the property to the appellants. The appeal was upheld, and the order of the court below was set aside.

Court Disposition

Appeal upheld with costs, including costs of the application for leave to appeal. The order of the court below is set aside and replaced with an order dismissing the appeal with costs.

Orders

  • The appeal is upheld with costs, including the costs of the application for leave to appeal.
  • The order of the court below is set aside and replaced by: 'The appeal is dismissed with costs.'