Division: Supreme Court of Appeal
Coram: Harms ADP, Ponnan, Cachalia JJA, Leach and Mhlantla AJJA
Heard: 18 November 2008
Order: 28 November 2008
Reasons: 26 February 2009
J R 209 Investments (Pty) Ltd & another v Pine Villa Country Estate (Pty) Ltd; Pine Villa Country Estate (Pty) Ltd v J R 209 Investments (Pty) Ltd
The Supreme Court of Appeal today upheld an appeal against an order of Rabie J, (Transvaal Provincial Division), where he granted an interdict effectively preventing the purchaser (J R 209) from dealing with the property sold pending the conclusion of action proceedings. This court further dismissed a cross-appeal arising from Botha J's refusal to permit the seller (Pine Villa) to amend its particulars of claim.
The seller sold immovable property to the purchaser. The property had been bought for the purpose of township development. In terms of clause 11.2 of the agreement, the purchaser was to retransfer a portion of the property to Mr Oberem, the seller's sole shareholder and director as soon as the subdivisional diagrams were available. The purchaser was unable to make the diagrams available within the agreed period and retransfer could not take place. The seller issued summons claiming retransfer of the portion and, in the alternative, payment of damages.
The cause of action was an alleged breach of the sale agreement arising from the purchaser's failure to obtain the sub-divisional diagrams within the stated period. When the seller instituted the interdict proceedings it launched a separate application to amend its particulars of claim to reflect certain additional causes of action on which the interdict was based. The seller, inter alia, alleged that the agreement of sale was invalid because it did not comply with the provisions of section 2(1) of the Alienation of Land Act 68 of 1981 as the portion to be re-transferred had not been adequately identified.
This court was satisfied that it had been the parties' intention to structure their agreement so that the portion would be retransferred to Mr Oberem and that he was the only person who was entitled to enforce the provisions of clause 11.2. Furthermore, it held that the description of the property alienated was adequately described for the purposes of section 2(1) of the Act. The court further found that the application for an amendment was rightly refused by Botha J and that Rabie J had erred in finding that the seller had any right that could be protected by an interdict. The court accordingly set aside the interdict preventing the establishment of a township development and dismissed the cross-appeal in respect of the application to amend the pleadings.