Vorster and Others v Vorster and Others (1723/07) [2011] ZAECPEHC 33 (2 August 2011)

Vorster and Others v Vorster and Others (1723/07) [2011] ZAECPEHC 33 (2 August 2011)

The court found that the sale agreement dated 4 March 2011 was null and void as it failed to properly describe the property and was not signed by all joint owners, in breach of section 2(1) of the Alienation of Land Act. The applicants, as joint owners, were entitled to seek partition and transfer of the property under actio communi dividundo, and the respondents could not alienate their undivided share to a third party without court permission. The urgency of the application was justified by the need to prevent transfer of the property, which would render the pending action proceedings academic and cause prejudice to the applicants. The court granted an interdict restraining the...

Citation
[2011] ZAECPEHC 33
Parties
Applicant: Steve Vorster; Applicant: Matthys Johannes Louwrens Eades; Applicant: Gloria Dorothy Eades; Respondent: Royden Vorster; Respondent: Elizabeth Vorster; Respondent: Steve Christiaan Bresler; Respondent: The Registrar of Deeds
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
2 August 2011
Case Number
1723/07
Procedural Posture
Urgent Application / Application for Declaratory and Interdictory Relief Prior to Finalization of Action Proceedings
Outcome
Application granted. Sale agreement declared null and void. Interdict granted restraining respondents from alienating their share pending finalization of action. Costs awarded against first and second respondents.
Judges
Z.M. Nhlangulela
Legal Topics
Alienation of Land Act, Actio Communi Dividundo, Partition of Joint Property, Interdict, Description of Property in Sale, Specific Performance
Land and Property Civil Procedure Alienation of Land Act Actio Communi Dividundo Partition of Joint Property Interdict Description of Property in Sale Specific Performance

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Parties

Steve Vorster

Applicant

Matthys Johannes Louwrens Eades

Applicant

Gloria Dorothy Eades

Applicant

Royden Vorster

Respondent

Elizabeth Vorster

Respondent

Steve Christiaan Bresler

Respondent

The Registrar of Deeds

Respondent

Procedural Posture

Urgent Application / Application for Declaratory and Interdictory Relief Prior to Finalization of Action Proceedings

Legal Issues

  1. 1 Whether the written sale agreement dated 4 March 2011 complies with section 2(1) of the Alienation of Land Act regarding proper description of the property.
  2. 2 Whether the applicants are entitled to interdict the respondents from selling their undivided share in the property pending finalization of the action proceedings.
  3. 3 Whether the sale agreement is null and void due to lack of signature by all joint owners and defective property description.

Ratio Decidendi

The court found that the sale agreement dated 4 March 2011 was null and void as it failed to properly describe the property and was not signed by all joint owners, in breach of section 2(1) of the Alienation of Land Act. The applicants, as joint owners, were entitled to seek partition and transfer of the property under actio communi dividundo, and the respondents could not alienate their undivided share to a third party without court permission. The urgency of the application was justified by the need to prevent transfer of the property, which would render the pending action proceedings academic and cause prejudice to the applicants. The court granted an interdict restraining the...

Court Disposition

Application granted. Sale agreement declared null and void. Interdict granted restraining respondents from alienating their share pending finalization of action. Costs awarded against first and second respondents.

Orders

  • The contract of sale marked 'SV2' between the first and second respondents as sellers and the third respondent as purchaser for Erf Number 3686, Korsten, situated at and known as 28 Strang Street, Korsten, Port Elizabeth, is declared null and void.
  • The first and second respondents are interdicted and restrained from alienating their jointly held undivided one-third share in the immovable property being Erf 3686, Korsten, situated at and known as 28 Strang Street, Korsten, Port Elizabeth.