Van Heerden v Pienaar (171/86) [1986] ZASCA 111; [1987] 1 All SA 280 (A) (29 September 1986)

Van Heerden v Pienaar (171/86) [1986] ZASCA 111; [1987] 1 All SA 280 (A) (29 September 1986)

The Supreme Court of Appeal held that section 5(2) of the Landbouhoewes (Transvaal) Registratie Wet, 1919 prohibits joint ownership of agricultural land where subdivision according to shares would result in portions smaller than one morgen, but this prohibition applies only to real rights capable of registration in the deeds office. The alleged oral agreement between the parties did not confer joint ownership or real rights but merely regulated their personal rights and obligations regarding the land. The agreement did not amount to an unlawful attempt to circumvent the statute (fraudem legis), as its effect was not to defeat the statutory purpose of preventing physical fragmentation of...

Citation
[1986] ZASCA 111
Parties
Appellant: F. Van Heerden; Respondent: J.S. Pienaar
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 1986
Case Number
171/86
Procedural Posture
Civil Appeal / Appeal From Order of Witwatersrand Local Division
Outcome
Appeal dismissed with costs; costs of two counsel not allowed.
Judges
Rabie, Jansen, Viljoen, Botha, Smalberger
Legal Topics
Joint Ownership, Statutory Interpretation, Fraudem Legis, Personal Vs Real Rights
Land and Property Civil Procedure Joint Ownership Statutory Interpretation Fraudem Legis Personal Vs Real Rights

Case Brief

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Parties

F. Van Heerden

Appellant

J.S. Pienaar

Respondent

Procedural Posture

Civil Appeal / Appeal From Order of Witwatersrand Local Division

Legal Issues

  1. 1 Is the alleged oral agreement between the parties regarding joint ownership of agricultural land valid under section 5(2) of the Landbouhoewes (Transvaal) Registratie Wet, 1919?
  2. 2 Does the agreement constitute an unlawful attempt to circumvent statutory restrictions on subdivision and joint ownership of agricultural land?
  3. 3 Does the agreement amount to fraudem legis or is it permissible as a personal right?

Ratio Decidendi

The Supreme Court of Appeal held that section 5(2) of the Landbouhoewes (Transvaal) Registratie Wet, 1919 prohibits joint ownership of agricultural land where subdivision according to shares would result in portions smaller than one morgen, but this prohibition applies only to real rights capable of registration in the deeds office. The alleged oral agreement between the parties did not confer joint ownership or real rights but merely regulated their personal rights and obligations regarding the land. The agreement did not amount to an unlawful attempt to circumvent the statute (fraudem legis), as its effect was not to defeat the statutory purpose of preventing physical fragmentation of...

Court Disposition

Appeal dismissed with costs; costs of two counsel not allowed.

Orders

  • The appeal is dismissed with costs.
  • The respondent is not awarded the costs of two counsel.