Van der Merwe NO and Others v Hydraberg Hydraulics CC and Others, Van der Merwe NO and Others v Bosman and Others (12742/09, 22837/09) [2010] ZAWCHC 129; 2010 (5) SA 555 (WCC) (17 June 2010)

Van der Merwe NO and Others v Hydraberg Hydraulics CC and Others, Van der Merwe NO and Others v Bosman and Others (12742/09, 22837/09) [2010] ZAWCHC 129; 2010 (5) SA 555 (WCC) (17 June 2010)

The court found that the contract for the sale of the business and fixed property was void due to non-compliance with the Alienation of Land Act. Specifically, the Hydraberg Property Trust was not properly represented, as only two of three trustees signed the contract without written authority from all trustees acting jointly. The trust instrument required joint action and notice to all trustees, which was not followed. The court rejected the applicants' reliance on the Turquand rule, finding it inapplicable to trusts in this context. Although the court recognised an abuse of the trust form by Clarke and Bosman, statutory formalities for the sale of land could not be disregarded....

Citation
[2010] ZAWCHC 129
Parties
Applicant: Johannes Marthinus Van der Merwe N.O.; Applicant: Leon Tobias Mostert N.O.; Applicant: Jacques Brink Theron N.O.; Respondent: Hydraberg Hydraulics CC; Respondent: Edward William John Clarke N.O.; Respondent: Quinton Petrus Johannes Bosman N.O.; Respondent: Edward William John Clarke; Respondent: Quinton Petrus Johannes Bosman; Respondent: Xtreme Hydraulics and Pneumatics; Respondent: Morne du Plooy
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 June 2010
Case Number
12742/09, 22837/09
Procedural Posture
Civil Application / Judgment After Hearing of Two Consolidated Applications
Outcome
Applications dismissed. Each party to bear its own costs, except applicants liable for costs of third, fourth, and fifth respondents in case 22837/09.
Judges
Binns-Ward
Legal Topics
Alienation of Land Act, Rectification of Contract, Trustee Capacity, Restraint of Trade, Piercing Trust Veneer, Costs Discretion
Land and Property Commercial and Corporate Civil Procedure Alienation of Land Act Rectification of Contract Trustee Capacity Restraint of Trade Piercing Trust Veneer +1 more

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Parties

Johannes Marthinus Van der Merwe N.O.

Applicant

Leon Tobias Mostert N.O.

Applicant

Jacques Brink Theron N.O.

Applicant

Hydraberg Hydraulics CC

Respondent

Edward William John Clarke N.O.

Respondent

Quinton Petrus Johannes Bosman N.O.

Respondent

Edward William John Clarke

Respondent

Quinton Petrus Johannes Bosman

Respondent

Xtreme Hydraulics and Pneumatics

Respondent

Morne du Plooy

Respondent

Procedural Posture

Civil Application / Judgment After Hearing of Two Consolidated Applications

Legal Issues

  1. 1 Whether the deed of contract for sale of business and fixed property is valid and enforceable.
  2. 2 Whether the trust was properly represented by its trustees in concluding the contract.
  3. 3 Whether the contract is void due to lack of written authority from all trustees as required by the Alienation of Land Act.

Ratio Decidendi

The court found that the contract for the sale of the business and fixed property was void due to non-compliance with the Alienation of Land Act. Specifically, the Hydraberg Property Trust was not properly represented, as only two of three trustees signed the contract without written authority from all trustees acting jointly. The trust instrument required joint action and notice to all trustees, which was not followed. The court rejected the applicants' reliance on the Turquand rule, finding it inapplicable to trusts in this context. Although the court recognised an abuse of the trust form by Clarke and Bosman, statutory formalities for the sale of land could not be disregarded....

Court Disposition

Applications dismissed. Each party to bear its own costs, except applicants liable for costs of third, fourth, and fifth respondents in case 22837/09.

Orders

  • The application to amend the notice of motion in case no. 12742/09 to introduce a claim for rectification is allowed and the amended notice of motion is admitted to the record.
  • The applications in case no. 12742/09 and case no. 22837/09 are dismissed.