Westraad NO en 'n Ander v Burger (5226/06) [2007] ZAFSHC 34 (13 April 2007)

Westraad NO en 'n Ander v Burger (5226/06) [2007] ZAFSHC 34 (13 April 2007)

The court held that the option contract was not rendered void by section 3(e)(i) of the Subdivision of Agricultural Land Act, as the Act's prohibition applies to sales and not to the mere granting of an option. The definition of 'sale' in the Act does not encompass an option contract, which only becomes a sale upon exercise of the option after ministerial consent. The ministerial consent granted in this case was subject to a condition (consolidation of properties in different registers) that was legally impossible to fulfil under the Deeds Registries Act. Therefore, the consent did not constitute valid consent as contemplated by the contract. The court found, both by interpretation and by...

Citation
[2007] ZAFSHC 34
Parties
Applicant: Jacobus Johannes Westraad N.O.; Applicant: Elizabeth Wilhelmina Westraad N.O.; Respondent: Magrieta Jacoba Burger
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
13 April 2007
Case Number
5226/06
Procedural Posture
Declaratory Application / Final Judgment
Outcome
Application granted. Declaratory order and interdict issued in favour of applicants. Costs awarded against respondent.
Judges
Van Zyl R
Legal Topics
Option Contracts, Subdivision of Agricultural Land, Ministerial Consent, Implied Terms, Declaratory Relief, Interdict
Land and Property Civil Procedure Commercial and Corporate Option Contracts Subdivision of Agricultural Land Ministerial Consent Implied Terms Declaratory Relief +1 more

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Parties

Jacobus Johannes Westraad N.O.

Applicant

Elizabeth Wilhelmina Westraad N.O.

Applicant

Magrieta Jacoba Burger

Respondent

Procedural Posture

Declaratory Application / Final Judgment

Legal Issues

  1. 1 Whether the option contract for the sale of agricultural land is rendered void by section 3(e)(i) of the Subdivision of Agricultural Land Act 70 of 1970.
  2. 2 Whether ministerial consent subject to an unlawful or impracticable condition constitutes valid consent as contemplated in the option contract.
  3. 3 Whether a tacit term exists in the option contract that ministerial consent must be legally and practically enforceable.

Ratio Decidendi

The court held that the option contract was not rendered void by section 3(e)(i) of the Subdivision of Agricultural Land Act, as the Act's prohibition applies to sales and not to the mere granting of an option. The definition of 'sale' in the Act does not encompass an option contract, which only becomes a sale upon exercise of the option after ministerial consent. The ministerial consent granted in this case was subject to a condition (consolidation of properties in different registers) that was legally impossible to fulfil under the Deeds Registries Act. Therefore, the consent did not constitute valid consent as contemplated by the contract. The court found, both by interpretation and by...

Court Disposition

Application granted. Declaratory order and interdict issued in favour of applicants. Costs awarded against respondent.

Orders

  • It is declared that the conclusion, validity, and enforceability of the option contract signed by the respondent and first applicant (on behalf of Westraad Trust) on 8 September 2005 and 13 September 2005 is not prohibited or rendered void by section 3(e)(i) read with the definition of 'sale' in section 1 of the...
  • It is declared that 'consent to subdivision' as contemplated in clause 16 of the option contract refers to consent by or on behalf of the Minister of Agriculture under sections 3 and 4 of the Act for the subdivision of Portion 6 of the farm Midway 2631, Bloemfontein district, and such consent must, if subject to...