Lubbe v Volkskas

Last updated

Lubbe v Volkskas Bpk 1992 (3) SA 868 (A); [1992] 2 All SA 270 (A) is an important case in the South African law of lease. In October 1987, the appellant brought an urgent application before a single judge in which he applied for an order

  1. declaring that he had established a lien over the wheat crop on a certain part of the farm T; and
  2. instructing the deputy sheriff to sell the said farm subject to his lien.

It was common cause that the respondent's intention, as mortgagee, had been to sell the land subject to the lease and, if the property did not realise the amount of the judgment debt, then free of the lease.

Judgment had been obtained by the respondent against the owner in January 1986 on a mortgage bond registered over the farm in 1983, and the property had been attached in March 1986. In May 1987 the owner had entered into a partiarian lease agreement with the appellant, in terms of which the latter had obtained occupation of part of the farm, and upon which he had subsequently cultivated the wheat crop.

The appellant's application was dismissed, inter alia, on the ground that the appellant did not have a lien over the proceeds of the sale in execution. The sale in execution took place in October 1987.

The appellant bought the land himself in order to protect his rights. His appeal to the Full Bench was dismissed, whereupon he appealed to the Appellate Division.

The court held that it had been common cause at the time of appellant's original application that it had been the respondent's intention to sell the land first, subject to lease, and only if the amount of the judgment debt was not realised, free thereof, and that this was in complete accordance with the common law as well as with the established legal procedure in sales in execution.

Furthermore, the court held that, if the land was sold free of the partiarian lease agreement, the appellant's averred lien would lapse, and the holders of real rights of security in the land would become preferent creditors in respect of the proceeds of the sale.

It was only where the appellant, as lienholder elected to lay claim to part of the proceeds, and the deputy sheriff had to decide whether or not to allow it, that an application for a declaratory order as to the existence of the lien (as prayed for in prayer 1) became necessary.

The court held that it was clear that prayer (1) had been intended to serve as a precursor to prayer (2). The contents of prayer (2) were, however, contrary to the above- mentioned common-law principles and procedures applicable in sales in execution. Accordingly, the appeal had to be dismissed with costs.

See also

Related Research Articles

<i>Peso Silver Mines Ltd v Cropper</i> Supreme Court of Canada case

Peso Silver Mines Ltd v Cropper, [1966] S.C.R. 673, is a leading Canadian case decided by the Supreme Court of Canada on the fiduciary duty of corporate directors, the boundaries of conflict of interest, and the type of damages that may be obtained in cases of wrongful dismissal.

South African property law

South African property law regulates the "rights of people in or over certain objects or things." It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law. Among the formal functions of South African property law is the harmonisation of individual interests in property, the guarantee and protection of individual rights with respect to property, and the control of proprietary relationships between persons, as well as their rights and obligations. The protective clause for property rights in the Constitution of South Africa stipulates those proprietary relationships which qualify for constitutional protection. The most important social function of property law in South Africa is to manage the competing interests of those who acquire property rights and interests. In recent times, restrictions on the use of and trade in private property have been on the rise.

Menqa and Another v Markom and Others is an important case in South African property law, heard in the Supreme Court of Appeal (SCA) on 5 November 2007, with judgment handed down on 30 November.

Ndlovu v Ngcobo; Bekker and Another v Jika, an important case in South African property law, was heard in the Supreme Court of Appeal on May 23, 2002, with judgment handed down on August 30.

ABSA Bank Ltd v Sweet and Others is an important case in the law of contract in South Africa. It was heard in the Cape Provincial Division May 12, 1992, by Tebbutt J, who delivered judgment on June 19.

Civil procedure in South Africa is the formal rules and standards that courts follow in that country when adjudicating civil suits. The legal realm is divided broadly into substantive and procedural law. Substantive law is that law which defines the contents of rights and obligations between legal subjects; procedural law regulates how those rights and obligations are enforced. These rules govern how a lawsuit or case may be commenced, and what kind of service of process is required, along with the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks are to function.

Eves v Eves [1975] EWCA Civ 3 is an English land law case, concerning constructive trusts of the family home.

True Motives 84 (Pty) Ltd v Mahdi and Another is an important case in South African law, heard in the Supreme Court Of Appeal on 28 August 2008, with judgment handed down on 3 March 2009. PM Kennedy SC appeared for the appellant. There was no appearance for the first respondent, while AE Franklin SC appeared for the second respondent and PJ Olsen SC for the amicus curiae.

Ponelat v Schrepfer is an important recent case in South African law, with ramifications particularly in the area of universal partnerships, in which the Supreme Court of Appeal (SCA) dismissed an appeal against an order of the Eastern Circuit Local Division High Court.

<i>Ponoka-Calmar Oils v Wakefield</i>

Ponoka-Calmar Oils v Wakefield is notable for being the last ruling rendered by the Judicial Committee of the Privy Council with respect to an appeal from the courts of Canada. The central issue concerned the construction of statutes relating to mechanic's liens and how they attach to land and the oil and gas severed from it, which issue had generated conflicting rulings in the Canadian courts.

General Accident Insurance Co South Africa Ltd v Xhego and Others is an important case in the South African law of delict, particularly the area of compensation for motor vehicle accidents. The case was heard in the Appellate Division, by Joubert JA, Van Heerden JA, Smalberger JA, F H Grosskopf JA and Van Coller AJA, on November 18, 1991, with judgment handed down on November 29. The appellant, whose attorneys were Silberbauers, Cape Town, and Symington & De Kok, Bloemfontein, was represented by BM Griesel. The respondents, whose attorneys were Coulter, Van Gend & Kotze, Claremont, and Webbers, Bloemfontein, were represented by BJR Whitehead.

Minister of Safety and Security v Luiters is an important case in the South African law of delict. It was heard in the Supreme Court of Appeal (SCA) on March 7, 2006, with judgment delivered on March 17. Mpati DP, Farlam JA, Navsa JA, Cloete JA and Van Heerden JA presided. RT Williams SC appeared for the appellant and HM Raubenheimer SC for the respondent. The appellant's attorneys were the State Attorneys, Cape Town and Bloemfontein. The respondent's attorneys were Smith & De Jongh, Bellville; Milton de la Harpe, Cape Town; and Honey Attorneys, Bloemfontein. The case was an appeal from a decision in the Cape Provincial Division by Thring J. A subsequent application to appeal it further to the Constitutional Court was rejected.

Kragga Kamma Estates CC and Another v Flanagan is an important case in the South African law of contract, an appeal from a decision in the South Eastern Cape Local Division by Jansen J. It was heard in the Appellate Division on August 19, 1994, with judgement handed down on September 29. The presiding officers were EM Grosskopf JA, Nestadt JA, Kumleben JA, Howie JA and Nicholas AJA. The appellants' attorneys were Tobie Oosthuizen, Port Elizabeth, and Webbers, Bloemfontein. The respondent's attorneys were Jankelowitz, Kerbel & Schärges, Port Elizabeth, and Lovius-Block, Bloemfontein. HJ van der Linde appeared for the appellants; JRG Buchanan SC for the respondent.

Soffiantini v Mould is an important case in South African law. An appeal from a decision of Back AJ, it was heard in the Eastern Districts Local Division by Price JP, Jennett J and Wynne J on July 30, 1956. Judgment was handed down on August 14, 1956. The appellant's attorneys were Espin & Espin. The respondent's attorney was LB Green. The case concerned the relationship between landlord and tenant, and confirmed that, under the common law, a landlord is not entitled to enter leased premises without consent. The trespassing landlord can be interdicted.

Memory Institute SA CC t/a SA Memory Institute v Hansen and Others is an important case in South African law, heard in the Supreme Court of Appeal. The judges were Harms JA, Schutz JA, Cameron JA, Conradie JA and Heher JA, who heard the case on May 8, 2003, handing down judgment on May 16, 2003. PJ Heymans appeared for the appellant; MH Wessels SC for the respondents.

Administrator, Transvaal v Theletsane is an important case in South African law, heard in an Appellate Division comprising Botha JA, Smalberger JA, MT Steyn JA, FH Grosskopf JA and Nicholas AJA. The case was heard on November 5, 1990; judgment was delivered on November 30. The respondents' attorneys were SV Khampepe, Johannesburg, and EG Cooper & Sons, Bloemfontein. The appellants had the State Attorney.

In Sishen Hotel (Edms) Bpk v Suid-Afrikaanse Yster en Staal Industriële Korporasie Bpk, an important case in the South African law of lease, the parties had concluded a twenty-year lease for a hotel. The lodge was next to a national road; because of this, it attracted considerable business.

<i>Cooper v Phibbs</i>

Cooper v Phibbs [1867] UKHL 1 is an English contract law case, concerning the doctrine of mistake.

<i>A (a Minor) v Minister for Justice and Equality and others</i> Irish Supreme Court case

A v Minister for Justice and Equality, Refugee Applications Commissioner, Ireland and the Attorney General[2013] IESC 18, (2013) 2 ILRM 457 is an Irish Supreme Court case where the Supreme Court concluded that a certificate of leave to appeal was not required in order to appeal to the Supreme Court a decision of the High Court to dismiss proceedings as frivolous or vexatious.

<i>Ciban Management Corporation v Citco (BVI) Ltd</i>

Ciban Management Corporation v Citco (BVI) Ltd[2020] UKPC 31 is a decision of the Judicial Committee of the Privy Council on appeal from the British Virgin Islands relating to directors' duties and the legal rule known as the Duomatic principle.

References


    This page is based on this Wikipedia article
    Text is available under the CC BY-SA 4.0 license; additional terms may apply.
    Images, videos and audio are available under their respective licenses.