Maryna holds the BA, LLB, LLM degrees and is a Director at the Cape Town branch of STBB. She is an admitted Attorney, Notary Public, Conveyancer and Insolvency Practitioner with many years of experience in the fields of property law, conveyancing and the laws relating to corporate compliance (especially in respect of the FICA and POPIA laws). Up until 2018 she was also head of the firm’s national marketing portfolio. She is a seasoned public speaker and presenter, both in person and online. She prepares text for the majority of STBB’s internal and external publications and is editor and co-writer for two pivotal publications in the South African real estate industry – the ABC of Conveyancing (JUTA) and Delport’s South African Property Law and Practice (JUTA).

Property Law Update | Issue 01 – 2023

TRUSTEE RESOLUTION FOR LOAN CONSTITUTES OSTENSIBLE AUTHORITY DESPITE REQUIRED NUMBER OF TRUSTEES NOT APPOINTED

Nedbank Limited v Mhlari N O and Others (37766/2018) [2022] ZAGPJHC 719; 2022 (6) SA 438 (GJ) (22 September 2022)

Practitioners dealing with trust transactions will be aware of the rule in our law that when trustees purport to act on behalf of a trust in the absence of the required complement of trustees, the trust estate cannot be bound. In an important judgment, the Court here notes that compliance with trust deed provisions (and appointment of the required number of trustees) lies primarily with the trustees. This is particularly so in the instance of typical family trusts where the founder is often also a trustee, and the other trustees are family members and beneficiaries. A third party acting on the strength of a resolution passed by such trustees to the effect that they have authority to bind the trust, can indeed rely on the resolution: The trust is estopped by virtue of ostensible authority, from claiming that it is not liable because the loan was concluded when the required number of trustees had not been appointed.

The Judgment
Summary of the Judgment

RIGHT OF PRE-EMPTION OF LEASED PORTIONS: WHAT HAPPENS IF THE WHOLE PROPERTY IS SOLD TO A THIRD?

Plattekloof RMS Boerdery (Pty) Ltd v Dahlia Investment Holdings (Pty) Ltd (667/2021) [2022] ZASCA 182 (15 December 2022)

X leases two portions of a farm that consists of 8 separately registered portions. The lease contained a pre-emptive right in favour of X in respect of the leased premises. Is X’s pre-emptive right triggered if all 8 portions are sold by the landlord, Y, to a third as a whole? Indeed, said the Court. But the next question is whether, in terms of the pre-emptive right, X has a pre-emptive right in respect of the whole or only in respect of the two leased portions? The Supreme Court of appeal discusses the considerations here and ultimately found that Y was obliged to honour the pre-emptive right and had to invite X to purchase the two portions at a value aligned to the amount offered in respect of the whole farm. The judgment is an interesting read.

The Judgment
Summary of the Judgment.

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