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[2020] ZAGPJHC 245
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Helm Construction (Pty) Ltd v Noortman and Another (22605/2018) [2020] ZAGPJHC 245 (21 September 2020)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE NO: 22605/2018
In the matter
between:
HELM
CONSTRUCTION (PTY)
LTD
Appellant
and
NOORTMAN,
GOTTLIEB
ANTONIE
1
st
Respondent
ANNA
ALFREDA
NOORTMAN
2
nd
Respondent
JUDGMENT
MIA, J
[1]
The
applicant is Helm Construction (Pty) Ltd, a private company duly
incorporated in terms of the company laws of South Africa.
Its
principal place of business is situated at R114 and Koala Roads, in
Muldersdrift, Mogale City. The first respondent is Mr.
Gottlieb
Antonie Noortman, an adult male residing at […], P. Road,
Wilgeheuwel. The second respondent is Ms Anna Alfreda
Noortman, the
wife of the first respondent, cited herein as the parties are married
in community of property. The respondents are
the owners of a
property which forms the subject of the dispute. The applicant sought
an order that the provisional sale agreement
entered into between the
applicant and the first respondent on 25 January 2011 be declared
void in terms of the Alienation of Land
Act 68 of 1981(the Alienation
of Land Act). Furthermore, that the respondent be directed to refund
the R1 016 000 which
the applicant paid as the part of
purchase. The respondents opposed the application.
[2]
It
is necessary to consider the background facts which gave rise to the
dispute before considering the relief requested. The applicant
and
first respondent entered into a provisional sale agreement (the
agreement) which provided that the applicant would purchase
the
property situated at Plot 12 Paul Kruger Road, Wilgeheuwel (the
property) from the respondent. The parties entered into a written
provisional sale agreement that the applicant would purchase the
property, and they would conclude a deed of sale agreement in
the
future. The applicant paid a deposit of R 200 000.00 to ensure
the seller did not offer the property to any other buyers.
The
agreement made provision for further payments to be made when
necessary. No other conditions were agreed upon regarding the
price
of the property or when a deed of sale would be concluded regarding
the property.
[3]
According
to Municipal Notice 253 of 2009, the respondents applied for, and
approval was granted to the respondents to establish
a township on
the remaining extent of Portion 192( a portion of portion 61) which
was to be Wilgeheuwel Extension 36 in terms of
section 103 of the
Town Planning and Townships Ordinance, 1986 (Ordinance 15 of 1986).
Before the rezoning application, the property
was zoned as
agricultural land. Once the property was rezoned, there was a
specification with regard to planned development. The
Municipal
Synchronicity Development Planning Unit advised that “
Based
on the available information. It is advisable to realise the
potential of the land for the purpose of medium to high-density
residential development. The location of the land in relation to Paul
Kruger Avenue implies that the upper end of the density
scale
could be achieved in this area ( namely 60 du per hectare).
Alternative uses which may be accommodated in terms of policy
guidelines might prove to be less profitable”
These conditions did not meet the requirements of the applicant who
had in the interim erected 300 square metres of office space
and 1200
metres of storage and related buildings on the property. The zoning
of the property did not allow for such usage. Neither
the applicant
as lessee nor the respondents as owners applied for the rezoning when
the buildings were erected. Once the approval
for a township was
approved, the respondents were informed that the property was zoned
for residential usage and not commercial
usage. A notice of
infringement of use was sent to the applicant who was the occupier
renting from the respondent at the time.
[4]
The
applicant paid a nominal rental as it had rented the property as
vacant land from the respondent and paid various sums over
a period
of time. The rental commenced at R7500, it increased to R9000 and
then R15 000. In terms of the agreement, the applicant
paid
rental and the extra amounts to secure the purchase of the property.
The money paid amounted to a total of R2 016 000.00 paid
toward the
purchase price. The applicant held the view that the agreement was
void
ab
initio
.
This was because the agreement did not comply with the requirements
of the Alienation of Land Act; specifically, section 2(1)
[1]
.
Having paid the respondent R2 016 000.00 towards the
purchase price of the property in terms of the agreement, the
applicant sought the return of the amount. The respondent returned
the amount of R1 000 000.00 to the applicant and retained
the amount of R 1 016 000.00, which it contended was for
market-related rental. The respondent now claimed the rental
it
charged was not market-related since the applicant was going to
purchase the property. Since the sale was no longer proceeding,
it
sought to retain the R 1 016 000.00 for rental as it sought
a market-related rental retrospectively for the property.
This amount
was in addition to the rental that had been paid as indicated above.
[5]
In
addition to the payment of the amount of R2 016 000.00, for
the property, the applicant affected improvements estimated
at
approximately R3 275 000.00. In addition to the
payment above and improvements, the applicant paid the respondent
a
monthly rental,which increased over time. The applicant only moved
out of the premises when it received a notice from the municipality
indicating the property was not zoned for the purpose for which it
was being utilised. The notice stated that the occupier or owner
was
required to furnish plans for the improvements failing which legal
steps would ensue. The applicant had laboured under the
impression
that the land was zoned for agricultural use. The applicant vacated
the premises as it alleged the first respondent
represented that the
property had been rezoned for residential use with commercial rights
use. The respondent had not informed
the applicant that it had been
rezoned for residential use without commercial rights.
[6] The issues for determination:
a.
Was
the agreement concluded between the parties a valid and enforceable
sale of land?
b.
If
the agreement is not enforceable, are there any obligations or
payments applicable or due by either party?
c.
The
third issue is whether the court should order the respondent to pay
the applicant the amount of R1 016 000.?
[7] The Act provides in section 28(1)
as follows:
“
(1)
Subject to the provisions of
subsection
(2)
,
any person who has performed partially or in full in terms of an
alienation of land which is of no force or effect in terms of section
2 (1), or a contract which has been declared void in terms of the
provisions of section 24 (1) (
c
),
or has been cancelled under this Act, is entitled to recover from the
other party that which he has performed under the alienation
or
contract, and—
(
a
)
the alienee may in addition recover from the alienator—
(i)
interest at the prescribed rate on any payment that he made in terms
of the deed of alienation or contract from the date of
the payment to
the date of recovery;
(ii)
a reasonable compensation for—
(
aa
)
necessary expenditure he has incurred, with or without the authority
of the owner or alienator of the land, in regard to the preservation
of the land or any improvement thereon; or
(
bb
)
any improvement which enhances the market value of the land and was
effected by him on the land with the express or implied consent
of
the said owner or alienator; and
(
b
)
the alienator may in addition recover from the alienee—
(i)
a reasonable compensation for the occupation, use or enjoyment the
alienee may have had of the land;
(ii)
compensation for any damage caused intentionally or negligently to
the land by the alienee or any person for the actions of
whom the
alienee may be liable.”
[8]
In
Kudu Granite Operations (Pty) Ltd v Caterna Ltd
[2003] 3
All SA 1
(SCA) at paragraph [15] the Court stated:
“
The
same principle applies if the contract is void due to a statutory
prohibition (
Wilken
v Kohler
1913
AD 135
at 149–50), in which case the
condictio
indebiti
applies.
There is no reason why contractual and enrichment remedies should be
conflated. Caterna’s case was one of a lawful
agreement which
afterwards failed without fault because its terms could not be
implemented. The intention of the parties was frustrated.
The
situation in which the parties found themselves was analogous to
impossibility of performance since they had made the fate
of their
contract dependent upon the conduct of a third party (KPMG) who was
unable or unwilling to perform. In such circumstances
the legal
consequence is the extinction of the contractual nexus: see De Wet
and Van Wyk,
Kontraktereg
en Handels-reg
5ed
vol 1 172 and the authorities there cited. The law provides a remedy
for that case in the form of the
condictio
ob causam finitam
,
an offshoot of the
condictio
sine causa specialis
.
According to Lotz, 9
LAWSA
(1
st
reissue) paragraph 88, the purpose of this remedy is the recovery of
property transferred under a valid
causa
which
subsequently fell away. See De Vos,
Verrykingsaanspreeklikheid
in die Suid-Afrikaanse Reg
3ed
65–6, cf
Holtshausen
v Minnaar
(1905)
10 HCG 50;
Hughes
v Levy
1907
TS 276
at 279;
Snyman
v Pretoria Hypotheek Maatschappij
1916
OPD 263
at 270–1;
Pucjlowski
v Johnston’s Executors,
op
cit. It is sometimes suggested that the
condictio
causa data causa non secuta
is
the appropriate remedy. See paragraph 85 of
LAWSA
(
supra
)
.
Indeed
in
Cantiare
San Rocco v Clyde Shipbuilding and Engineering Co
1923
SC 105
(HL), a case of a contract frustrated by the outbreak of war
which made performance legally impossible, the Judicial Committee
after an exhaustive consideration found that that was the remedy.”
[9] In the same
matter
Kudu
at paragraph [21] the Court found:
“
A
presumption of enrichment arises when money is paid or goods are
delivered. A defendant then bears the onus to prove that he has
not
been enriched: De Vos (
supra
)
2ed 183 quoted with approval in
African
Diamond Exporters (Pty) Ltd v Barclays Bank International
Ltd
1978 (3) SA 699 (A)
at 713G–H.”
[10]
In
Laco
Parts (Pty) Ltd t/a ACA Clutch v Turners Shipping (Pty) Ltd
[2007] JOL 20715
(W), the Court per Borochowitz J considered what
remedy was available where a contract was void
ab
initio
and was referred to certain authorities as follows:
“
Reliance
for this submission was placed on the following statement by AJ Kerr
in
The Principles
of the Law of Contract
:
8
"What
remedy is available if the contract based on a fundamental common
mistake has been partly executed? In
Dickinson
Motors
(
Pty
)
Limited
v Oberholzer
1952 (1) SA 443 (A)
it was argued that the claim was a
condictio
indebiti
but
Schreiner JA, with whom Fagan JA concurred, took care not to restrict
a present day court to the requirements of this remedy
in Roman law.
The court allowed repayment without any enquiry into the enrichment
or otherwise of the defendant at the time of
action. This accords
with the express statement in
Lediker
and Sache v Jordaan
(1898)
5 OR 107
at 111 that the proper remedy is restitution, which in turn
accords with the award of restitution and restitutionary damages
in
Van
Der Westhuizen v James
(1898)
5 OR 90.
"
[11] Mr Jacobs, for
the respondents, raised two points
in
limine
. The first point
in
limine
related to non- joinder of the
respondents' spouse to whom he was married in community of property.
However, the second respondent
was subsequently joined in the
proceedings. Thus the respondent no longer persisted with this point.
On, the second point
in limine
,
he argued was not really a point
in
limine
as it should really form part of
the main issue for determination. This point, he continued, related
to the admission of the confirmatory
affidavit filed in the replying
affidavit. He raised points regarding its admissibility
in
limine
nonetheless.
[12] Mr. Jacobs
argued that the deponent to the affidavit as mentioned earlier, did
not have personal knowledge of the matter and
a certain, Mr. De Groot
was part of the negotiations. Mr. De Groot deposed to the
confirmatory affidavit. This confirmatory affidavit
was attached to
the replying affidavit and not the founding affidavit. It was trite,
he argued, that the applicant could not make
out its case in the
replying affidavit. As it applied to the present matter, the
confirmatory affidavit should not be allowed as
it was attached to
the replying affidavit. A confirmatory affidavit, he argued, when
the affidavit was available at the time
of the deposition of the
founding affidavit should not be permitted to be attached to the
replying affidavit.
[13] He continued
further on the point
in limine
that
Mr. De Groot’s affidavit at p 105 at paragraph 2, confirms what
was related to him as true and correct and not the full
contents of
the affidavit. Further, the deponent who took the oath pronounced the
oath and stated that the deponent was a female
as the word “she”
is reflected in the affidavit, and Mr. De Groot is a male. In
addition to the above, the Commissioner
of Oaths did not certify on
which day he took the oath and attested the affidavit. Therefore the
affidavit was defective.
[14] Mr. Gibson,
appearing for the applicant, submitted in response that Mr. De Groot
confirmed the affidavit in so far as it pertained
to him. Mr. De
Groot, and confirmed the affidavit of Mr. Gustav Nel. He argued
further that the applicant had to make out a case
for the cause of
action in the founding affidavit, which the deponent Mr. Nel did. Mr.
De Groot was merely filing a confirmatory
affidavit. In any event,
all Mr. De Groot confirmed were the facts relating to the provisional
sale agreement. The parties concluded
an agreement of sale which Mr.
Jacobs argued was a
pactum
which is an agreement to agree to purchase the property at a later
date. The agreement, however, did not provide for the purchase
price.
All of the negotiations led to the provisional sale agreement and not
beyond. However, the page with which Mr. Jacobs took
issue with had
the police stamp with a date which was sufficient to indicate the
date on which the affidavit was signed and commissioned.
The
policeman stamped the documents with a date stamp instead of writing
in the date by hand. In the circumstances, he argued that
the
affidavit ought to be condoned. If the court did not find a
reason to condone the non-compliance, the confirmatory affidavit
was
irrelevant. He continued that the confirmatory affidavit was
not essential for the applicant’s case.
[15] In my view,
the issue of the gender appeared to be typographical, and the date
stamp indicated the date on which the affidavit
was signed and
commissioned. This explanation satisfied me concerning the points
raised regarding the defects in the affidavit.
The affidavit was thus
condoned on this aspect. The remaining issue regarding the affidavit
being attached to the reply is an issue
for the merits to be dealt
with later. The applicant does not appear to place much reliance on
this affidavit attached to its reply
in any event.
[16]
As pointed out already, Mr. Gibson argued that the agreement
providing for the sale of the property was void
ab
initio.
The applicant paid for the property over a period of time and also
paid a monthly rental. He submitted further that the rental
valuation
submitted by the respondent of R60 (sixty rands) per square
meter of storage space and R95 (ninety five rands)
per square metre
of office space was based on a property with improvements. He pointed
out that the court should not lose sight
of the fact that these
improvements had been effected by the applicant and maintained by the
applicant. The applicant had received
and rented a vacant piece of
land on which it affected improvements given the agreement to
purchase the property. The rental value
of the property without the
improvements effected by the applicant was estimated at approximately
R2500 per hectare at present-day
value. He continued furthermore that
the rental applicable over the period that the applicant paid rental
would have been much
less. It would be opportunistic for the
respondent to intend to gain from the applicant’s improvements
to the property by
seeking retrospectively a market-related rental
based on the applicant’s improvements to the vacant land which
the respondent
rented to the applicant on a rental they had agreed
upon. The rental valuation of the land should be considered without
the improvements
effected by the applicant.
[17]
Mr. Gibson argued furthermore that the respondent had earned interest
on the money paid toward the purchase price of the property.
Interest
had thus accrued on the amount of R 2 016 000.00 whilst it
was in the respondent’s account. In addition
to benefitting
from the interest accrued, the respondent also benefited from the
improvement to the property valued at R3 275
00.00. He argued
that the applicant was entitled to recover this interest from the
respondent in terms of s 28(1)(a)(i) and (ii)
of the Alienation of
Land Act as well as the improvement to the property. The applicant,
however, did not seek interest on the
R 2 016 000.00 paid
or reimbursement or compensation for the improvements valued at R
3 275 000.00. The applicant
only sought the balance of the
payment of R 1 016 000.00 paid for the property. In respect
of the improvements, the applicant
tendered to demolish such
improvements despite the Alienation of Land Act not requiring it to
do so. He submitted that as neither
party had performed fully in
terms of the agreement, the applicant was still entitled to recover
the capital amounts paid in terms
of a void agreement.
[2]
The respondent was not entitled to retain any amounts as he had not
launched a counterclaim and had not set out any amounts which
could
be due for rental. It was not possible to ascertain what such charges
could be or on what basis.
[18] Mr. Jacobs
submitted that the respondents denied that they had misrepresented to
the applicant that the zoning of the property
was as it was alleged
by the municipality or that they had benefitted by earning interest
on the amount of R 2 016 000.00
paid. He continued
furthermore that the respondent also denied that they were enriched
by the improvements to the property or by
the interest accrued on the
R2 016 000.00 received to date. He submitted that on the
respondent’s version, the
R2 016 000.00 received was
received as a payment to ensure the property was not offered to any
other purchaser but was not
the full purchase price. He explained
further that the respondent contended that the applicant paid a
nominal rent for the premises.
He explained further that the
difference between the market-related rental for the property and the
nominal rental paid by the
applicant should be set off against any
amount found to be payable to the applicant by the respondents.
[19] Mr. Jacobs
submitted furthermore that the applicant’s contention that the
agreement was void as it did not comply with
section 2 of the
Alienation of Land Act was incorrect. This was so; he submitted
because the agreement which the parties entered
into was not a deed
of sale. Instead, he continued it was an agreement to conclude a sale
agreement for the property in the future,
namely a
pactum de
contrahendo
. Such an agreement he argued, was simply an agreement
that the respondents would sell the property to the applicant in the
future
upon payment of a sum of money. This, he argued, was a right
of pre-emption which need not have been in written form to be valid.
In this regard, he relied on
Kretzmann v Kretzmann
[2019] JOL
45702
(ECP) at paragraph [12]
“
[12] On
this basis the majority in the Constitutional Court concluded
that
Hirschowitz
was
wrongly decided in this respect and that a right of pre-emption
relating to land need not be in writing for it to be binding.”
[13] An
option to purchase, however, is a different phenomenon. An option to
purchase is comprised of two distinct parts:
an offer to purchase;
and an agreement to keep that offer open, usually for a fixed period
(
Boyd v Nel
1922
AD 414
at 421;
Hersch
v Nel
1948 (3) SA 686 (A)
at 695 [also reported at
[1948] 3 All SA 427
(A) –
Ed];
Brandt v
Spies
1960 (4) SA 14 (E)
at 16F–17C [also reported at
[1960] 4 All SA 50
(E) –
Ed];
Venter v
Birchholtz
1972 (1) SA 276 (A)
at 283G–284B [also reported at
[1972] 1 All SA 361
(A) –
Ed];
Wasmuth v
Jacobs
1987 (3) SA 629 (SWA)
at 633D [also reported at
[1987] 3 All SA 171
(SWA) –
Ed]; GB Bradfield at 66; and Glover at 125). The undertaking to keep
the offer open (the option agreement) is
of course a
pactum
de contrahendo
. It is
not an alienation as envisaged in the Act and is not required to be
in writing (Glover at 66 and Van der Merwe
et
al
at 70). The
offer, however, which the
pactum
has
undertaken to keep open, must be a firm offer which will result in a
binding contract when it is accepted (
Efroiken
v Simon
1921 CPD
367
at 370;
Finestone
v Hamburg
1907
TS 629
at 632;
Venter
v Birchholtz
;
Aris
Enterprises
(
Finance
)
(
Pty
)
Ltd
v Waterberg Koelkamers
(
Pty
)
Ltd
1977 (2) SA 425 (A)).
By virtue of the provisions of section 2(1) of the Act an offer
resulting in the sale
of land can only bring about a binding
agreement upon acceptance if it is in writing.
[20] Mr. Jacob’s
moreover disagreed with the applicant’s reliance placed on
section 6 of the Alienation of Land Act
which applied to a contract
wherein the land is sold in the deed of alienation against payment of
an amount of money paid in more
than two instalments over a period
exceeding one year. He argued that the agreement was not provisional
and was not invalid, void
and unenforceable. He contended that the
first respondent offered to sell the property to the applicant and
submitted an offer
to purchase the property to the applicant for
consideration and acceptance. This offer to purchase was attached to
the founding
affidavit. The applicant refused to accept the offer to
purchase.
[21]
Furthermore, Mr. Jacobs argued that the applicant might have been
correct that to the extent the parties purported the agreement
to be
a deed of sale or an agreement in terms of the Alienation of Land Act
for the sale of the property it was void and of no
force and effect.
He continued furthermore, however, that on the applicant’s
version, the agreement was not an agreement
in terms of the
Alienation of Land Act. The parties, therefore, need not have
complied with the Alienation of Land Act. He, accordingly,
submitted
that the agreement was, in fact, an agreement where the parties
agreed that the property would be sold to the applicant
in the
future. The provisional agreement was therefore not void, invalid or
unenforceable.
[22] In considering whether the
agreement concluded between the parties was a valid and enforceable
sale, there was only a provisional
agreement to purchase the
property. No price was determined, and no date was set to conclude
the deed of sale. In
Mokone v Tassos Properties Ltd and Another
[2017] 1 BCLR 1216
(CC) 1 the Court stated at paragraph [50] –[51]
“
[
50]
Thi
s
is how the Court got there:
"[A
]
righ
t
o
f
pre-emptio
n
give
s
th
e
pre-empto
r
n
o
righ
t
t
o
clai
m
transfe
r
o
f
land
;
i
t
merel
y
give
s
hi
m
a
righ
t
t
o
enter
into
an
agreement
of
sale
with
the
grantor
should
the
latter
wish
to
sell.
When
such
an
agreement
is
completed then, and not before, will he have a right to claim
transfer of land, so that it is the agreement which must be in
writing."44
So
,
according to
Rogers
there is no need for compliance with the formalities at the time a
right of pre-emption is granted.
[51]
No
t
according to Corbett JA. His view to the contrary is expressed in
Moolman
.45
According
to him section 1(1) of the Formalities Act and section 2(1) of the
Alienation of Land Act require signature by all parties
to a right of
pre-emption.46
He
makes this point:
"I
n
genera
l
a
pactu
m
d
e
contrahend
o
i
s
require
d
t
o
compl
y
wit
h
th
e
requisite
s
fo
r
validity
,
includin
g
requirement
s
as
to form, applicable to the second or main contract to which the
parties have bound themselves. . ."47
[23] Even if the
agreement which the parties entered into were a
pactum
de contrahendo
to
agree on a sale at a later date, I have considered that that
agreement was enforceable at the applicant’s instance as
suggested in
Mokone
above in paragraph [54] where the Court stated:
“
Now,
let us have a close look at that reasoning. The fundament of the
reasoning is that inexorably the holder of the right of pre-emption
can become a purchaser in terms of the right only through means that
fall foul of the formalities. It is this that gives rise to
the
anomaly to which the Court is referring. I do not see why - upon the
occurrence
of
the
contingencies
that
trigger
an
entitlement
to
exercise
the
right
-
the
holder
cannot
exercise it in a manner that complies with the requisite formalities.
The holder may simply make a signed written offer to
purchase. If the
grantor accepts the offer in writing under signature, a sale that
meets the formalities will come into being.
If she or he does not,
the holder of the right may seek a declarator by a court that she or
he is entitled to the exercise of the
right and a mandamus requiring
the grantor to accept the offer in writing. If the relief is
warranted,
it
must be granted. That is nothing more than holding the grantor to the
parties' agreement.”
[24] The
pactum
which the respondent relies on is not an agreement concluded in terms
of the Alienation of Land Act. The offer made by the respondent
was
not accepted. No agreement exists which meets the requirements of the
Alienation of Land Act. In the present instance, the
agreement even
if it is valid, it is an agreement which is enforceable at the
instance of the right holder. The terms of the agreement
do not,
however, meet the requirements for transferring the property in terms
of the Alienation of Land Act. The applicant did
not accept the offer
to purchase which the respondents presented, and there is no
enforceable agreement in terms of the Alienation
of Land Act.
[25]
Given the first question being decided above, any payments made by
the applicant toward the purchase price may be recovered.
The
applicant paid monies toward the purchase price of a property. In
terms of section 28 of the Alienation of Land Act and subject
to
subsection 2 the applicant may recover interest at the prescribed
rate on any payment that he made in terms of the deed of alienation
or contract from the date of the payment to the date of recovery. In
this instance, I regard the extra amounts paid other than
rentals as
monies paid in terms of the agreement. The applicant is also entitled
to a reasonable compensation for necessary expenditure
he had
incurred, with or without the authority of the owner or alienator of
the land, in regard to the preservation of the land
or any
improvement thereon. Further, he is entitled to compensation for any
improvement, which enhanced the market value of the
land and was
effected by him on the land with the express or implied consent of
the said owner or applicant. The applicant made
improvements valued
at R3275 000.00. He was thus entitled to compensation for such
improvements. The applicant asserted that he
does not wish to pursue
such compensation for improvements. He only sought the balance of the
money paid, namely R1016 000.00 and
interest thereon. He is entitled
to the same in terms of the Alienation of Land Act. Mr. Jacobs
requested that the rentals due
by the applicant be set off against
any monies owing by the respondent. The respondent did not file any
counterclaim, and there
are no amounts to be set off against the
amount of R 1 016 000.00.
The respondent’s claim that amounts be setoff can not be
entertained as it had not lodged a counterclaim, and there was no
way
of knowing what amounts were to be setoff and on what basis.
COSTS
[26] I proceed to
the costs issue. Both parties argued that costs should follow the
cause. There are no unusual circumstances to
divert from such the
usual order.
[27] For the reasons given above, I
make the following order :
ORDER
1. The Provisional Sale Agreement
entered into between the applicant and the respondent on 25 January
2011 is void in terms of the
Alienation of Land Act 68 of 1981
.
2. The respondent is ordered to pay
the applicant the sum of R 1016 000.00.
3. The respondent shall pay Interest
on the amount mentioned in paragraph 2 above at the rate of 9% per
annum a tempora more until
the date of final payment.
4. The respondent
shall pay the costs of the application.
_________________________________
S
C MIA
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances:
On behalf of the applicant: Adv C
Gibson
Instructed by: Andrew Miller &
Associates
On behalf of the respondent: Adv TL
Jacobs
Instructed by: Craig Harvey Attorneys.
Date of hearing: 10 May 2020
Date of judgment: 21 September 2020
[1]
s2(1)
No alienation of land after the commencement of this section shall,
subject to the provisions of
section
28
,
be of any force or effect unless it is contained in a deed of
alienation signed by the parties thereto or by their agents acting
on
their written authority.
[2]
Legator
McKenna Inc and Another v Shea and Other
[2009] 2 All SA 45
(SCA)