De Villiers, Andries Nolte v Potgieter PJ NO and Others

Supreme Court of Appeal -611/05 Hearing date: 17 November 2006
  Judgment date: 01 December 2006

Eviction – applicability of doctrine of notice assumed – transfer of property to second purchaser with knowledge of prior sale not a nullity – separate action for setting aside transfer pending – no basis for alleged right to occupy alleged by first purchaser – second purchaser as owner entitled to eviction order – special costs order.

Media Summary of Judgment

The Supreme Court of Appeal, today dismissed an appeal by Andries N de Villiers who was resisting his eviction from a farm purchased by the respondents from Bulpan Beeste (Edms) Bpk. De Villiers and one Kevin Grant Keeley had earlier concluded an agreement in terms of which Keeley sold all the issued shares in the company to him. The agreement provided that De Villiers would take possession of the shares and effective control of the company on 1 July 2002 or some other date. On some unspecified date De Villiers took occupation of the farm though the share agreement did not make provision for it. He was subsequently persuaded by Keeley to cancel the share agreement on the understanding that he and Keeley would simultaneously conclude another agreement for the sale of the farm to him. After cancellation of the share agreement Keeley reneged and sold the farm to the respondents who are the trustees of the Potgieter Family Trust. The farm was subsequently registered in their names. The respondents obtained an order from the Northern Cape Division of the High Court for his eviction from the farm and on appeal the SCA confirmed that order.

De Villiers had sought reliance on the doctrine of notice on the basis that the respondents were aware of his claim to the shares in the company as embodied in the share agreement. He stated that in terms of the doctrine of notice the transfer of the farm into the respondents’ names could not supersede his personal right emanating from the share agreement.

The SCA found that even if the doctrine of notice was applicable, the transfer of the farm into the respondents’ names was not a nullity and that they remained owners thereof until the transfer to them was cancelled. De Villiers had not in these proceedings asked for the cancellation of the transfer but did so in other proceedings which are still pending. The SCA held that as owners the respondents were entitled to possession of the farm unless De Villiers was able to establish his right to be in occupation. The SCA held that he failed to do so.