Lindner and Another v Vogtmannsberger and Another

• Jurisdiction: South Africa
• Judge: De Villiers J
• Judgment Date: 15 April 1965
• Citation: 1965 (4) SA 108 (O)
• Hearing Date: 19 February 1965
• Court: Orange Free State Provincial Division

De Villiers, J.:

This is an argument on an exception taken by defendants B to plaintiffs' declaration.

Plaintiffs, a director of companies and a housewife, respectively, are married in community of property with the exclusion of the marital power, and defendants are business men and the registered owners in C equal shares of all the issued shares in a company known as Wilrose Investments (Pty.) Ltd. (hereinafter referred to as the company).

Plaintiffs' declaration, after setting out the above, continues as follows:

'6.

The company is and was at all material times the registered owner of stand 6433, Welkom.

7.

On or about 24th March, 1964, first and second plaintiffs as sellers entered into an agreement with first and second defendants D as purchasers, whereby plaintiffs sold their shares in the company to defendants for a total sum of R19,000 (nineteen thousand rand) payable in cash against transfer of the said shares.

8.

The said agreement was partly verbal and partly in writing, the written portion being annexed hereto, marked 'A'.

9.

It was further orally agreed that prior to the transfer of the shares the balance owing by the company to the Allied Building Society in respect of an existing bond over stand 6433, Welkom, E would be paid on behalf of the company by the plaintiffs. It was further orally agreed that on payment of the purchase price and the transfer of the shares any claims by first and/or second plaintiffs against the company would be abandoned forthwith.

10.

It was common cause between the parties that first and second plaintiffs in entering the agreement aforesaid, acted in their capacities as shareholders and not on behalf of the company, and the words appearing above the signature of first and second F plaintiffs 'for Wilrose Investments (Pty.) Ltd.', were redundant and inserted in error.

11.

Defendants in fact were granted a bond on stand 6433, and were able to have this registered but did not do so.

12.

Plaintiffs complied with their obligations as set out in annexure 'A' and para. 9 above and have tendered transfer of the shares in the company to defendants and performance of any and all further obligations resting upon them in terms of the agreement between the parties, and repeat such tender hereby, G but defendants refuse to accept transfer and refuse to pay the sum of R19,000, or any other amount, in fulfilment of the agreement aforesaid.

Wherefore plaintiffs pray for an order against first and second defendants for:

A.

Rectification of annexure 'A' hereto by the deletion of the words H 'for Willrose Investments (Pty.) Ltd.'

B. (1)

Payment of the sum of R19,000.

(2)

Interest a tempore morae.

(3)

Alternative relief.

(4)

Costs of suit.'

Annexure 'A' is to the following effect:

'We, the undersigned, Joseph Vogtmannsberger; and; Siegfried Heinrich Heiriss hereby offer to purchase the shares in Wilrose Investments (Pty.) Ltd., for the sum of R19,000 (nineteen thousand rand) payable in cash against transfer of the shares in the above company (subject to building society bond being arranged).

De Villiers J

All liabilities in connection with the above-mentioned property will be the responsibility of the sellers who undertake to make whatever payments are necessary, i.e. balance on first bond, assessment rates (if owing) up to 1st April, 1964, etc.

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