Bothongo Agriculture GP (Pty) Ltd v Kerbyland (Pty) Ltd and 2 Others (18781/2018) [2019] ZAGPHC 42 (22 February 2019)

/ / News, 2019, Sale of Immovable Property


Bothongo Agriculture GP (Pty) Ltd (the “Applicant”) owns the Rhino and Lion Reserve, a plot of land adjacent to the property in respect of which the application was launched (the “Property”). The Applicant sought to acquire the Property from the first respondent, Kerbyland (Pty) Ltd (the “First Respondent”), which Property was being leased to the second respondent, Crab Farm Kroomdraai (Pty) Ltd (the “Second Respondent”).
In the terms of the lease agreement concluded between the First and Second Respondent in respect to the Property, the Second Respondent had a right of first refusal in the event that the First Respondent wished to sell the Property. During negotiations between the Applicant and the First Respondent, the Applicant represented that the Second Respondent had no intention of exercising its right of first refusal, and that the waiving of same will be a “mere formality”.  

A draft sale agreement was prepared in respect of the Property (the “Sale Agreement”), subject to the suspensive condition, inter alia, that the Second Respondent waived its right of first refusal and chose not to purchase Property. The Applicant contended that based on the strong representations by the First Respondent, the Applicant offered to purchase the Property and made payments of the deposit.  

Subsequent to the conclusion of the Sale Agreement, the Second Respondent addressed correspondence to the First Respondent confirming that, in terms of the lease agreement, it exercised its right of first refusal to purchase the Property. Thereafter, the Applicant expressed its intention to launch an application interdicting the transfer of the Property to the Second Respondent, pending an action to be instituted regarding the circumstances surrounding the Second Respondent’s exercising of its right of first refusal.  

The Applicant initially sought the relief of specific performance, to allow the transfer of the Property to the Applicant. The Applicant subsequently, by way of an amendment to the relief sought, sought to declare the conduct of the Second Respondent, in its exercising of its right of first refusal, as unconstitutional and invalid and for the Sale Agreement to be set aside. The Applicant contended that the Second Respondent exercised its right to first refusal ‘for the sole basis of preventing a black-owned company from acquiring additional immovable property in the area’.  

The Applicant asked the Court to effectively disregard the Second Respondent’s exercise of its contractual right on the basis that it was illegal, unconstitutional and contrary to section 9(4) of the Constitution.  

However, at the hearing, the Applicant sought a further amendment that the matter be referred to oral evidence to determine whether the exercise of the Second Respondent’s right to first refusal was motivated by racism.  

What the Applicant therefore sought was for the Court to disregard the legal and contractual elements of the case and instead to decide the matter after referring it to oral evidence to deliberate on whether the Respondents acted in a discriminatory manner.   


The Court found that there was a lack of objective facts on which to sustain the allegation for racially motivated and unfair discrimination. The Court held that inferences must be distinguished from speculation and must importantly be based on objective facts.  The Court took the view that this particular case was not one where the Court, based upon the speculative allegations of the Applicant, should refer the matter for oral evidence in relation to the motivation behind the Second Respondent exercising its contractually valid right. Moreover, the Court held that there must be a valid dispute of fact before a matter can be referred to oral evidence.  

A party is not entitled to seek to lead oral evidence to make out a case that was not already made out by the party in its papers.  

The Court took the view that although the Applicant’s submission was for the Court to take judicial notice of the fact that racially discriminatory conduct is rife, in general, it is an insufficient basis to find that the Applicant was racially discriminated against.   

The application was dismissed with costs.


Objective facts form the basis upon which to sustain an allegation of unfair discrimination

Written by Saul Mayers and supervised by Jonathan Salant

Share Article: