Judgement on property to be heard

Image courtesy of Stock.xchng

Image courtesy of Stock.xchng

A judgment regarding the cancellation of the sale of a property will be handed down in the Constitutional Court on Thursday.

The Constitutional Court will hear an application for leave to appeal against a judgment made by the full Bench of the Northern Cape High Court in Kimberley.

In November 2003 Lorraine Sophie Botha entered into an instalment sale agreement with trustees for the purchase of immovable property for R240,000.

Botha paid her monthly instalments without fail until the end of 2007. When she failed to continue paying the trustees applied to the magistrate’s court to cancel the agreement and evict her and the laundry business she ran from it. The magistrate’s court granted the trustees’ application.

Botha applied for leave to appeal in the high court. Shortly before the appeal was to be heard, the trustees abandoned the magistrate’s court judgment.

The trustees approached the high court in March 2009 for an order declaring the sale agreement cancelled and that the applicants be evicted.

Botha then counter-applied for an order compelling specific performance in the form of transfer of the property into her name. She argued that in terms of the Alienation of Land Act and the agreement, she was entitled to the transfer because she had paid more than half the purchase price.

The high court found in favour of the trustees and dismissed the counter application. It held that the contract had been cancelled validly by the trustees and that a cancellation clause in the agreement was enforceable.

It held further that although the act makes provision for Botha to demand transfer of the property after half the purchase price has been paid, it does not entitle her to specific performance.

Botha’s application for leave to appeal to the Supreme Court of Appeal was dismissed.



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