Victor v Strohmenger and Another (2020/2015) [2020] ZANCHC 79 (20 November 2020)

Victor v Strohmenger and Another (2020/2015) [2020] ZANCHC 79 (20 November 2020)

The court held that the oral agreement for the transfer of immovable property was invalid for want of compliance with section 2(1) of the Alienation of Land Act, which requires such agreements to be in writing and signed by the parties. The first respondent's defence of donation was also invalid, as she failed to plead or prove that the donation was in writing. The appellant was entitled to restitution of his part performance under section 28(1) of the Act, as the respondent did not establish the applicability of section 28(2). The court found that the appellant discharged the onus of proof by relying on the respondent's pleadings, which conceded the relevant facts. The appeal was upheld,...

Citation
[2020] ZANCHC 79
Parties
Appellant: Schalk Willem Victor; Respondent: Susara Magrietha Strohmenger; Respondent: Registrar of Deeds, Kimberley
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
20 November 2020
Case Number
2020/2015
Procedural Posture
Civil Appeal / Appeal From Judgment of Sieberhagen Aj, With Leave of Court a Quo
Outcome
Appeal upheld; judgment and order of the court a quo set aside; judgment granted in favour of the appellant as per prayers in particulars of claim; costs awarded to appellant.
Judges
Tlaletsi, Williams, Lever
Legal Topics
Alienation of Land Act, Invalid Contract, Restitution, Onus of Proof, Pleading Requirements
Land and Property Civil Procedure Alienation of Land Act Invalid Contract Restitution Onus of Proof Pleading Requirements

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 6 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Schalk Willem Victor

Appellant

Susara Magrietha Strohmenger

Respondent

Registrar of Deeds, Kimberley

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of Sieberhagen Aj, With Leave of Court a Quo

Legal Issues

  1. 1 Whether the oral agreement regarding the transfer of immovable property was invalid for lack of compliance with section 2(1) of the Alienation of Land Act.
  2. 2 Whether the appellant is entitled to restitution of his part performance under an invalid agreement.
  3. 3 Whether the first respondent's pleaded donation defence was valid in law.

Ratio Decidendi

The court held that the oral agreement for the transfer of immovable property was invalid for want of compliance with section 2(1) of the Alienation of Land Act, which requires such agreements to be in writing and signed by the parties. The first respondent's defence of donation was also invalid, as she failed to plead or prove that the donation was in writing. The appellant was entitled to restitution of his part performance under section 28(1) of the Act, as the respondent did not establish the applicability of section 28(2). The court found that the appellant discharged the onus of proof by relying on the respondent's pleadings, which conceded the relevant facts. The appeal was upheld,...

Court Disposition

Appeal upheld; judgment and order of the court a quo set aside; judgment granted in favour of the appellant as per prayers in particulars of claim; costs awarded to appellant.

Orders

  • The appeal is upheld and the judgment and order of the court a quo are set aside.
  • Judgment is granted in favour of the plaintiff in accordance with the prayers contained in paragraphs 13.1, 13.2, 13.3 and 13.7 of the plaintiff's Particulars of Claim dated 30 September 2015.