Van Deventer v Ivory Sun Trading 77 (Pty) Ltd

The appellant and his brother Johannes were beneficiaries under their parents’ will. A farm (Dartmouth) was bequeathed to Johannes subject to a testamentary right of pre-emption in favour of the appellant, entitling him to the first option to purchase the farm at a Land Bank valuation should Johannes decide to sell after their mother’s death. This right was registered against the title deed. Despite this, Johannes granted options and lease arrangements to Dr Cronjé and entities associated with him, without first offering the property to the appellant in terms of the pre-emption. The respondent, Ivory Sun Trading 77 (Pty) Ltd, as Cronjé’s nominee, later exercised an option to purchase and sought declaratory relief that a valid sale existed. The appellant contended that his registered right of pre-emption had been infringed. The High Court held that the appellant’s right had prescribed. The appellant appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the North Gauteng High Court was amended by setting aside certain paragraphs and substituting the costs order. The declaratory relief granted in favour of the respondent was effectively overturned, and the appellant’s right of pre-emption was held not to have prescribed.

This case is significant for clarifying when prescription begins to run in respect of rights of pre-emption in South African law. It confirms that such a right does not become enforceable, and thus does not prescribe, until the grantor has made a proper written offer in accordance with the terms of the right and statutory formalities. The judgment also underscores the protective effect of registering a right of pre-emption against a title deed.