Susara Magrietha Strohmenger v Schalk Willem Victor and Another

The first respondent issued summons in 2015 claiming restitution based on an alleged oral agreement concluded in 2009, in terms of which he would cause three immovable properties in Postmasburg to be transferred into the applicant’s name, and in return she would transfer another property to him. He alleged the agreement was unlawful under the Alienation of Land Act 68 of 1981 for lack of writing and sought re-transfer of the property at 5 Malan Street. The applicant denied the existence of the alleged agreement, contending that the properties were acquired and registered in her name as part of a life partnership, alternatively as a donation or maintenance arrangement. No oral evidence was led by either party at trial. The trial court dismissed the restitution claim. On appeal, the full court upheld the first respondent’s appeal and ordered transfer of the property. The applicant sought special leave to appeal to the Supreme Court of Appeal.

Special leave to appeal was granted; the appeal was upheld with costs; the order of the full court was set aside and replaced with an order dismissing the appeal with costs.

The case reaffirms key principles regarding the burden of proof, the limits of pleadings without evidence, and the application of the abstract theory of transfer in South African property law. It underscores that restitutionary relief cannot be granted in the absence of proof of an unlawful or invalid underlying transaction, and clarifies the scope of the Alienation of Land Act in disputes involving third-party transfers.