South Africa: North Gauteng High Court, Pretoria

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER: 48677/16

22/12/2017

In the matter between:

HJH VAN DER HOVEN                                                                   APPLICANT/PLAINTIFF

And

DJ VAN DER WESTHUIZEN                                                  RESPONDENT/DEFENDANT

JUDGMENT – LEAVE TO APPEAL

TLHAPI J

[1] The applicant states that the court erred in the following respects:

· in finding that the plaintiff’s claim was one of restitution only, instead of restitution and damages;

· being mistaken about the date on which the Companies Act of 2008 came into operation;

· rejecting the basis upon which the plaintiff cancelled the oral agreement as mentioned in the particulars of claim;

· in finding that the provisions of the Alienation of Land Act 1981 applied to the oral agreement; the agreement did not entail an alienation of land;

· in dismissing the plaintiff’s claim instead of setting the particulars of claim aside and granting the plaintiff an opportunity to file amended particulars of claim within a stated period;

· in not finding that the oral agreement did not constitute a pre-incorporation agreement;

· in not finding as pleaded in 4.9 of the particulars of claim that it was upon the defendant within a reasonable period, to do what was necessary to be done or take all necessary steps to sign necessary documents and to comply with the formalities required in the future by law to transfer the property to the company, that consequently the oral agreement was only between plaintiff and defendant and not the as yet unregistered company;

· in prejudging the matter on the basis that whatever the defendant had to do in the future had to assessed with regard to the oral agreement. The agreement was between the plaintiff and the defendant, that it was not a pre-incorporation agreement subject to the Alienation of Land Act of 1981; and the court failed to interpret the oral agreement in a manner benevolent to the plaintiff and the exception ought to have been dismissed. Alternatively, if upheld, the plaintiff should have been given opportunity to amend his particulars of claim;

[2] There was no appearance for the defendant.

[3] Having heard counsel for the applicant I am of the view that another court may come to a different conclusion with regard to the grounds set out above and in particular with regard to the status of the oral agreement whether (a) the oral agreement was a pre-incorporation agreement subject to the Alienation of Land Act, (b) that the applicant having complied with his part of the agreement and the respondent did not, that it was irrelevant and not necessary to have regard to the principles of pre-incorporation since the applicant had cancelled the agreement for failure by the defendant in complying with his part of the agreement.

[4] Even though it was argued that the issues were complex, that leave be granted to the Supreme Court of Appeal, I am of the view that leave be granted to the full court of this division and the following order is given:

            “Leave to appeal to the full court of this division is hereby granted”.

___________________

TLHAPI VV

(JUDGE OF THE HIGH COURT)

MATTER HEARD ON                             :           23 NOVEMBER 2017

JUDGMENT RESERVED ON                 :           23 NOVEMBER 2017

ATTORNEYS FOR THE APPLICANT     :           THYS CRONJE INC.

ATTORNEYS FOR THE RESPONDENT:           TIM DU TOIT & CO INC.