Tosen v Tosen en Anders (58121/2010) [2012] ZAGPPHC 155 (8 August 2012)

Tosen v Tosen en Anders (58121/2010) [2012] ZAGPPHC 155 (8 August 2012)

The court found, on the probabilities, that the first respondent was aware of the applicant's intention to retain the house and that the relevant agreements reflected this intention. Clause 16.1 and related annexures were void, but severable from the main contract, which remained valid. The applicant's entitlement to compensation for relinquishing her claim to the house was established through the conduct and correspondence of the parties, and the agreed amount of R650,000 was not subject to any condition related to the realization of development profits. The first respondent's obligation to pay the applicant was unconditional and arose from the need to neutralize her claim to the house....

Citation
[2012] ZAGPPHC 155
Parties
Applicant: Jeanne Hildegard Tosen; Respondent: Graeme Tosen; Respondent: Vincent Tosen; Respondent: Victor Tosen
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 August 2012
Case Number
58121/2010
Procedural Posture
Civil Judgment / Final Judgment
Outcome
Judgment for the applicant. The first respondent is ordered to pay R650,000 to the applicant, together with interest and costs.
Judges
TJ Kruger
Legal Topics
Sale of Immovable Property, Contractual Interpretation, Severability of Contract, Specific Performance
Land and Property Civil Procedure Sale of Immovable Property Contractual Interpretation Severability of Contract Specific Performance

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Parties

Jeanne Hildegard Tosen

Applicant

Graeme Tosen

Respondent

Vincent Tosen

Respondent

Victor Tosen

Respondent

Procedural Posture

Civil Judgment / Final Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to retain ownership of the house situated on the consolidated property despite transfer to the first respondent.
  2. 2 Whether clause 16.1 of annexure 'A' and related agreements are valid and enforceable.
  3. 3 Whether the first respondent is liable to pay R650,000 to the applicant as compensation for relinquishing her claim to the house.

Ratio Decidendi

The court found, on the probabilities, that the first respondent was aware of the applicant's intention to retain the house and that the relevant agreements reflected this intention. Clause 16.1 and related annexures were void, but severable from the main contract, which remained valid. The applicant's entitlement to compensation for relinquishing her claim to the house was established through the conduct and correspondence of the parties, and the agreed amount of R650,000 was not subject to any condition related to the realization of development profits. The first respondent's obligation to pay the applicant was unconditional and arose from the need to neutralize her claim to the house....

Court Disposition

Judgment for the applicant. The first respondent is ordered to pay R650,000 to the applicant, together with interest and costs.

Orders

  • The first respondent is ordered to pay the amount of R650,000 to the applicant.
  • The first respondent is ordered to pay interest at 15.5% per annum on the amount of R650,000, calculated from 19 February 2010.