Vorster and Others v Vorster and Others (CA366/2011) [2013] ZAECGHC 1 (10 January 2013)

Vorster and Others v Vorster and Others (CA366/2011) [2013] ZAECGHC 1 (10 January 2013)

The court held that the sale agreement, when read as a whole, sufficiently described the subject matter as a 1/3 undivided share in the property, satisfying the requirements of section 2 of the Alienation of Land Act. Clause 18 of the agreement clarified the intention of the parties and the context of the sale. The court found that co-owners have an unrestricted right to alienate their share in property, and the respondents' claim under actio communi dividundo did not entitle them to block the sale or dictate the terms. The respondents were given a right of first refusal, which they declined, and there was no agreement restricting alienation. The urgency claimed by the respondents was not...

Citation
[2013] ZAECGHC 1
Parties
Appellant: Royden Vorster; Appellant: Elizabeth Vorster; Appellant: Steve Christiaan Bresler; Appellant: Registrar of Deeds; Respondent: Steve Vorster; Respondent: Matthys Johannes Louwrens Eades; Respondent: Gloria Dorothy Eades
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
10 January 2013
Case Number
CA366/2011
Procedural Posture
Civil Appeal / Appeal From Judgment and Order of Court a Quo
Outcome
Appeal upheld; order of the court a quo set aside.
Judges
N Dambuza, D Chetty, N G Beshe
Legal Topics
Alienation of Land Act, Undivided Shares, Co Ownership, Actio Communi Dividundo, Urgent Interdict, Description of Property
Land and Property Civil Procedure Alienation of Land Act Undivided Shares Co Ownership Actio Communi Dividundo Urgent Interdict Description of Property

Case Brief

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Parties

Royden Vorster

Appellant

Elizabeth Vorster

Appellant

Steve Christiaan Bresler

Appellant

Registrar of Deeds

Appellant

Steve Vorster

Respondent

Matthys Johannes Louwrens Eades

Respondent

Gloria Dorothy Eades

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment and Order of Court a Quo

Legal Issues

  1. 1 Whether the description of the immovable property in the sale agreement complies with section 2 of the Alienation of Land Act.
  2. 2 Whether co-owners of undivided shares must sign or consent to an agreement of alienation of one or more shares.
  3. 3 Whether the right to claim under actio communi dividundo supersedes the right of a co-owner to freely alienate his or her share.

Ratio Decidendi

The court held that the sale agreement, when read as a whole, sufficiently described the subject matter as a 1/3 undivided share in the property, satisfying the requirements of section 2 of the Alienation of Land Act. Clause 18 of the agreement clarified the intention of the parties and the context of the sale. The court found that co-owners have an unrestricted right to alienate their share in property, and the respondents' claim under actio communi dividundo did not entitle them to block the sale or dictate the terms. The respondents were given a right of first refusal, which they declined, and there was no agreement restricting alienation. The urgency claimed by the respondents was not...

Court Disposition

Appeal upheld; order of the court a quo set aside.

Orders

  • The appeal succeeds and the order granted by the court a quo is set aside.
  • The respondents are ordered, jointly and severally, the one paying the others to be absolved, to pay the appellants' costs of appeal.