Willemse v Cronje and Others

The applicant, Marius Johannes Willemse, is the son-in-law of the testator. The first respondent, Wessel Marthinus Cronje, is the grandson of the testator and registered owner of two farm portions (Portions 24 and 25 of Farm Tartouwa no 296). The second respondent, Anna Petronella Cronje, is the first respondent's mother and holds a usufruct over the properties. The third respondent, Tartouwa (Pty) Ltd, is a prospective buyer. The testators' joint will created pre-emptive rights in favour of remaining sons and sons-in-law to lease and purchase the farm properties before sale or lease to outsiders (clause 3.5). The will also bequeathed a usufruct to the second respondent. Despite this, the first respondent leased the farm properties to the third respondent in April 2022 without offering the applicant the opportunity to exercise his pre-emptive right. In January 2023, the third respondent made an offer to purchase the farm for R10.5 million. The first respondent accepted, structuring the sale into two agreements: one for the farmland at R8.5 million and another for movables and immovable improvements at R2 million. In February 2023, the applicant was informed of the sale and invited to make an offer. He made an offer for R8.5 million for the land only, excluding movables and improvements, which the first respondent rejected. The applicant sought to enforce his pre-emptive right, set aside the lease, and have the second respondent declared to have waived her usufruct.

• At what stage was the applicant's pre-emptive right triggered – upon receipt of the offer or upon conclusion of the sale agreement?
• Whether the applicant, in exercising his pre-emptive right, is entitled to determine different terms of sale from those agreed between the first and third respondents?
• Whether the conclusion of the lease agreement between the first and third respondents was in breach of the applicant's pre-emptive right to lease?
• Whether the second respondent's consent to the sale agreement constituted an irrevocable waiver of her usufructuary right?

The application is dismissed with costs, including costs of counsel on Scale C.

1. A pre-emptive right is triggered when the grantor receives an offer from a third party, not when the sale agreement is concluded. 2. Where a will bequeaths farm properties 'with all improvements thereon', the pre-emptive right applies to the properties inclusive of improvements, and the holder must step into the shoes of the third-party purchaser on identical terms, including price for improvements and movables sold as a package. 3. A usufructuary's right to lease property is not subject to a pre-emptive right registered against the bare dominium holder; the usufruct precedes and operates independently of the right of first refusal. 4. Consent to a sale at a specified price does not constitute an irrevocable waiver of a usufruct if the waiver was conditional upon achieving that price.

The court observed that the first respondent's claim of ignorance regarding the pre-emptive right — despite it deriving from his grandfather's will and appearing in his title deed — was 'preposterous and cannot be justified'. The court also noted that there was no evidence that the first and third respondents acted in bad faith when structuring the sale agreements, or that the terms were beyond the bounds of commercial reason or designed to frustrate the applicant.

This case clarifies the interaction between usufructuary rights and pre-emptive rights in South African property and succession law, establishing that a usufructuary's right to lease is not constrained by a pre-emptive right registered against the bare dominium holder. It also provides guidance on the interpretation of wills where pre-emptive rights and usufructs coexist, and confirms that a pre-emptive right holder must match the full terms of a third-party offer — including related movable and immovable improvements — where these form part of a commercially sensible package deal.