Bonheur 76 General Trading (Pty) Ltd and Others v Caribbean Estates (Pty) Ltd and Others

The dispute concerned a 46% undivided share in residential property in Morningside, Johannesburg. Bonheur 76 General Trading (Pty) Ltd owned the remaining 54%. Caribbean Estates (Pty) Ltd acquired the 46% share in 2006 and sold it in 2008 to Wedgeport (Pty) Ltd, which registered a mortgage bond over the share in favour of Ettin and Greenberg. Bonheur and associated appellants sought to set aside the sale and mortgage, alleging a de facto right of pre-emption, restrictions arising from co-ownership, an oral partnership agreement, and alternatively that the transactions were simulated shams.

The appeal was dismissed with costs, including the costs of two counsel.

The case reaffirms key principles of South African property law: that rights of pre-emption relating to land must comply with statutory formalities; that co-owners may freely dispose of their undivided shares absent agreement to the contrary; and that allegations of sham transactions require clear evidence of simulation. It clarifies the distinction between ordinary co-ownership and ‘tied’ co-ownership, such as marriage in community of property.