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[2010] ZAWCHC 599
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Stellenbosch Wine & Country Estate (Pty) Ltd v SAFAMCO Enterprises (Pty) Ltd (10078/08) [2010] ZAWCHC 599 (3 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No. 10078/08
In
the matter between:
STELLENBOSCH
WINE & COUNTRY ESTATES (PTY) LTD
…...............
Plaintiff
(Respondent)
And
SAFAMCO
ENTERPRISES (PTY) LTD
…...................................................
Defendant
(Excipient)
JUDGMENT
DELIVERED ON 3 DECEMBER 2010
CLOETE,
AJ
[1]
This is an exception taken by the defendant (excipient) to the
plaintiffs (respondent's) amended particulars of claim filed
on 25
August 2008. In this judgment I will refer to the parties as
plaintiff and defendant respectively.
[2]
In its amended particulars of claim plaintiff pleads that on 2
November 2004, and represented by Hermanus Steyn ('Steyn'),
it
concluded a written contract of purchase and sale with defendant,
duly represented by Francisco Neethling ('Neethling') in
terms of
which it purchased certain immovable property ('the property') from
defendant for the sum of R1,5m. A copy of the written
deed of sale
('the contract') is annexed to the amended particulars of claim as
'PC1'.
[3]
The relief sought by plaintiff in its amended particulars of claim
is (a) rectification of clause 1.1 of the contract (b)
an order
declaring the contract to be valid and enforceable against defendant
and (c) an order that defendant perform its remaining
obligations in
terms of the contract.
[4]
Clause 1.1 of the contract provides that the property sold is:
'
'n Gedeelte van gedeelte 2 (n gedeelte van gedeelte 1) van die plaas
Weltevreden Nr.744 gelee in die Administratiewe Distrik
PAARL, Wes
Kaap Provinsie.
In
Extent: approximately: 18 Ha as per area marked "A" in
Annexure "A" attached hereto.
Together
with all the water rights registered for the property."
[5]
Plaintiff pleads that (a) due to a mistake common to both parties,
clause 1.1 does not correctly describe the property or
its extent
(b) the error arose due to a mistake in drafting the contract as a
result of a bona fide mutual error between the
parties and (c) it
was the common intention of the parties that clause 1.1 of the
contract should read as follows:
'Gedeelte
2 (n gedeelte van gedeelte 1) van die plaas Weltevreden Nr.744 gelee
in die Administratiewe Distrik Paarl, Wes Kaap
Provinsie.
IN
EXTENT: approximately 21,35 hectares as per area indicated in bold
in annexure "2" attached hereto.'
[6]
The reference to 'Annexure 2' is to the same document referred to in
clause 1.1 of the contract as Annexure 'A'.
[7]
On 11 February 2009 defendant filed an exception to the amended
particulars of claim on the basis that such pleading lacks
averments
which are necessary to sustain a cause of action.
[8]
In essence, defendant contends that there is no sale, whether at
common law or in terms of
s 2(1)
of the
Alienation of Land Act, 68
of 1981
. The two main avenues of attack concern the identity of the
offeree or seller and the adequacy of the identity of the property
which is the subject of the sale in the contract. It has a third
avenue of attack, namely that, even if this court finds that
the
contract is rectifiable, the rectification sought is not permissible
in law because if the contract is rectified in the terms
sought by
plaintiff, it would render the description of the property
incomplete and uncertain and would therefore have the same
result,
namely that there is no sale.
[9]
As to the identity of the seller, the defendant contends that the
plaintiff's offer has not been accepted by the defendant
(to whom
the offer was directed) but by Neethling in his personal capacity,
alternatively
the
identity of the seller is uncertain and therefore no sale arose. A
number of alternative contentions were also raised, but
to my mind
it is unnecessary to consider each separately because they are all
premised on this court finding ex
facie
the
contract that the defendant (as seller) did not accept the
plaintiffs offer, or that it cannot be determined with reasonable
certainty that the defendant accepted the offer as seller. I will
refer to this first principal contention as 'the identity of
the
seller'.
[10]
As to the description of the property sold, the defendant in essence
contends that such description is incomplete or uncertain,
because
no annexure "A" (as referred to in clause 1.1 of the
contract) was annexed in order to properly describe and/or
identify
the property sold,
alternatively
the
description in the annexure to the contract was inadequate. I will
refer to this second principal contention as 'the description
of the
property'.
[11]
An exception is a legal objection to an opponent's pleading. It
complains of a defect inherent in the pleading;
admitting
for the moment that all of the allegations in a pleading are true
,
it asserts that even with such admission the pleading does not
disclose a cause of action. Courts are reluctant to decide, by
way
of exception, questions concerning the interpretation of a contract.
The onus rest on the excipient to persuade the court
that the
pleading is excipiable
on
every interpretation that it can reasonably bear
,
(my emphasis) See:
Erasmus:
Superior Court Practice B1-151 and 152A-153 and the cases cited
therein.
[12]
A
'cause
of action'
was
defined in
McKenzie
v Farmer's Co-operative Meat Industries Ltd
1922
AD 16
at 23, with reference to the earlier case of
Cook
v Gill
(L.R,
8 CP 107)
to be as follows:
Every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment
of the
court. It does not comprise every piece of evidence which is
necessary to prove each fact
(the
facta probantia),
but
every fact which is necessary to be proved
(the
facta probanda)'.
[13]
In the instant matter, what is every fact which is necessary to be
proved by plaintiff to sustain a cause of action? It seems
to me
that the starting point is the
Alienation of Land Act, 68 of 1981
,
the relevant provisions of which read as follows:
[13.1.]
Section 2(1)
, which states that:
'No
alienation of land ... shall... 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."
[13.2.]
Section 6(1)
, which requires that a contract pertaining to the sale
of land shall contain,
inter
alia,
'(a)
The names of the purchaser and the seller and their residential or
business addresses in the Republic;
(b)
The description and extent of the land which is the subject of the
contract
THE
IDENTITY OF THE SELLER
[14]
The description of the seller in the contract is contained in the
very first paragraph under the heading
'Offer
to Purchase immovable property'
on
page 1 of the document. It reads as follows:
To:
Francisco
Neethling: identity number: 3404045054088
195
Voortrekker Road
Kraaifontein
Duly
authorised thereto by SAFAMCO Enterprises (Pty) Ltd (Hereinafter
referred to as "the SELLER")
[15]
In this judgment, I shall refer to
'SAFAMCO
Enterprises (Pty) Ltd'
as
'SAFAMCO'.
[16]
The parties are
ad
idem
that
the offer was clearly made to the seller as SAFAMCO, the defendant
in this case and that Neethling was authorised to represent
and
conclude the contract on behalf of the defendant. The difficulty
however is what appears at page 13 of the contract, where
the
following is recorded:
I,
the
undersigned, F. NEETHLING, The registered owner of the above
property hereby accept the above Offer and all its terms and
conditions."
[17]
It should be noted that the only handwritten words in the
aforementioned quoted portion are
F.
Neethling'.
The
remaining portion is typed and the handwritten portion inserted.
Thereafter the date and place of signature are reflected
and
Neethling signed above the word
'SELLER'.
[18]
Mr Farlam, on behalf of defendant, pointed out that the plaintiff
has not asked for rectification insofar as the seller's
identity is
concerned, and accordingly whether rectification is possible on this
issue is not something which this court will
have to decide. The
plaintiffs response is that a claim for rectification is not
necessary, essentially on three grounds, namely
that (a) there can
be no doubt that ex
facie
the
contract the seller was defendant; (b) there is no merit in the
defendant's contention that the offer was not accepted by
the
defendant; and (c) even if this court finds that there is ambiguity
in the contract, the defendant's exception is bad in
law as it is
open to plaintiff to prove, by way of extrinsic evidence, that when
Neethling signed the contract he did so on behalf
of defendant and
that defendant was the registered owner of the property at the time.
[19]
The gist of defendant's submissions on this aspect can be summarised
as follows:
[19.1.]
Neethling could theoretically have done one of two things when it
came to signing the document for purposes of 'accepting
the offer':
The
one thing he could have done was that he could have signed his name
'simpliciter'
as
for the seller since, as the company is inanimate, it needed a
human being to sign for it. This would have obviously made
SAFAMCO
the acceptor and the seller;
The
other thing he could have done was what he did in fact do,
viz,
that
he signed with a qualification. Although he did sign his name, there
are words specially introduced with other matter which
demonstrate
that he, Neethling, is in control of the process of acceptance of
the offer and that he signed in his personal capacity
as the
acceptor. To emphasize his election to sign in his personal
capacity, it is also stated at page 13 of the contract that
Neethling himself (and not SAFAMCO) is the owner of the property to
be sold;
[19.2.]
As SAFAMCO is the sole offeree at page 1 of the contract, it is not
possible for anyone else, such as Neethling, to be
the acceptor.
Accordingly, there is no acceptor and there is no seller and thus
there is no contract of sale, despite the document
of sale, since
there is the absence of one of the
essentialia
of
the sale.
[20]
The enquiry in respect of the seller concerns an interpretation of
the language in the contract. The proper technique of
interpretation, as consistently adopted by our courts, is as
follows:
'According
to the "golden rule" of interpretation the language in the
document is to be given its grammatical and ordinary
meaning, unless
this would result in some absurdity or some repugnancy or
inconsistency with the rest of the instrument... The
mode of
construction should never be to interpret the particular word or
phrase in isolation by itself ... The correct approach
to the
application of the "golden rule" of interpretation after
having ascertained the literal meaning of the word
or phrase in
question is, broadly speaking, to have regard
(inter
alia):
(1)
To the context in which the word or phrase is used with its
interrelation to the contract as a whole, including the nature
and
purpose of the contract
See
Coopers
& Lybrand & Others v Bryant
[1995] ZASCA 64
;
1995
(3) SA 761
(AD) at 767E-768E.
1
(1
[21]
The courts are in general inclined to favour interpretations of
contracts which give legal effect to transactions seriously
concluded over those which result in invalidity, if the contract is
reasonably amenable to such a construction. In
Kriel
& Another v Le Roux
[2000]
All SA 65
(SCA) at 68c-d para [5] this approach was summarised as
follows:
'In
die algemeen gesproke gee die hof voorkeur aan 'n vertolking wat
geldigheid eerder as ongeldigheid aan 'n kontrak verleen,
mits die
kontrak natuurlik redelik vatbaar vir so 'n uitleg is...'
[22]
In
Major
v Business Corners (Pty) Ltd
1940
WLD 84
, which also dealt with an argument on exception, the
plaintiff claimed enforcement of a contract for the sale to the
defendant
of certain immovable property. The contract of sale set
out that it was
'entered
into by and between Business Corners (Pty) Ltd ... hereinafter
referred to as the seller, and John Ernest Major hereinafter
referred to as the purchaser'.
Clauses
in the contract followed which defined the obligations of seller and
purchaser respectively. The signatures at the end
of the contract
were
'R.E.
Evison'
above
the word
'Seller'
and
'J.
E. Major
above
the word
'Purchaser'.
The
defendant seller sought to resist the claim of the plaintiff
purchaser on the basis that (a) as a matter of construction it
was
Evison who signed the contract personally and not the seller and (b)
if he signed as agent the relevant transfer duty proclamation
excluded oral evidence directed at varying the parties to the
contract, in that an agent may not sign his own name and then
contend that he has signed as agent on behalf of a company. At page
87-88 of the judgment the court stated as follows:
'If
there is a patent ambiguity in this contract in that on the face of
the document the company is described as the seller and
Evison is
similarly described, it may be that it is a patent ambiguity of the
kind which may be resolved by reference to extrinsic
evidence in the
same way that latent ambiguities are resolved ... But it is not
necessary for me to decide this as I am of opinion
that the
exception fails for the reason that the ambiguity is apparent rather
than real and that the correct construction of
the document, reached
without resort to extrinsic evidence, is that the company is the
seller. When Evison signed the document
he must be presumed to have
read and approved what he signed ... The word "seller"
below Evison's signature should
be given the same meaning as the
contract says it is to have throughout, i.e. Business Comers (Pty)
Ltd.'
[23]
Applying the above principle to the contract in the instant matter,
the following emerges. Firstly, throughout the remainder
of the
document any reference to
'the
seller'
is
a reference to the defendant, because of the inclusion of the words
'(hereinafter
referred to as "the Seller")'.
The
word
Seller'
below
Neethling's signature on page 13 of the contract should be given the
same meaning as throughout the contract, i.e. SAFAMCO.
Secondly,
there are several references throughout the contract to the word
'it'
rather
than
'he'
(the
defendant itself points out that there are seven such references)
further indicating that the seller is an entity rather
than a
person. Thirdly, the name inserted in handwriting, i.e.
'F.
Neethling'
in
that portion which reads 7,
the
undersigned, F Neethling, The registered owner of the above property
hereby accept the above Offer and all its terms and conditions',
must
be read in conjunction with the rest of the writing in the contract
and, if one bears in mind that a human being must necessarily
sign
on behalf of a company, the only reasonably possible construction is
that Neethling signed as agent or representative for
SAFAMCO.
[24]
The above construction is confirmed by the words employed on page 1
of the contract to the effect that Neethling was authorised
to
represent SAFAMCO. I agree with the submission by plaintiffs counsel
that there is no reason why that authority only pertains
to
Neethling's act of signing on behalf of SAFAMCO, but not to his act
of acceptance. They must surely be one and the same act.
An
additional consideration is that the seller is clearly described in
clause 10.1 of the contract as the holder of the title
to the
property. In clause 10.1 it is stated that
'The
PURCHASER agrees to accept title as held by
the
SELLER
...
'
(my emphasis)
[25]
In my view, and having regard to the aforegoing, it is clear that ex
facie
the
contract the seller is indeed the defendant and it is thus not
necessary for me to consider whether any extrinsic evidence
should
be led. Accordingly, the defendant's exception on this ground must
fail.
THE
DESCRIPTION OF THE PROPERTY
[26]
As set out above,
s 6(1
)(b) of the
Alienation of Land Act, 68 of
1981
requires that a contract shall contain the description and
extent of the land which is the subject of the contract. For ease of
reference, the description of the property sold is again set out
below as follows:
'
'n Gedeelte van gedeelte 2 (n gedeelte van gedeelte 1) van die plaas
Weltevreden Nr.744 gelee in die Administratiewe Distrik
PAARL, Wes
Kaap Provinsie.
In
Extent: approximately: 18 Ha as per area marked "A" in
Annexure "A" attached hereto.
Together
with all the water rights registered for the property."
[27]
In
Wulfsohn:
Formalities in respect of Contracts of Sale of Land Act, 71 of 1969
(1980 edition),
the
learned author summarised the legal principles applicable to a
determination of whether the description of a property in a
contract
for the sale of land complies with the requirement set out in s 6(1
)(b). [Although the author was referring to the
previously
applicable legislation, the parties are
ad
idem
that
the same principles still apply]. They are as follows:
[27.1.]
There is no specific requirement in the legislation as to how much
or how little of a description of the land sold will
suffice for the
description to result in a valid sale;
[27.2.]
Meticulous accuracy in the description is not required, and it is
sufficient if the intention of the parties can be ascertained
from
the description with a reasonable degree of certainty, even if
'the
language therein be inelegant, clumsy or loosely used';
[27.3.]
Courts will attempt to interpret the language used in a contract in
favour of this approach.
'The
basic approach is that all recognised means of, or aids to,
interpretation must, in the case of difficulties, be resorted
to
before the written sale is condemned as being invalid for want of
compliance with the Formalities Legislation ... The principle
is
that "sufficiency, not perfection, is the essential
requirement" ... if the reasonably intelligent reader is able
to identify the property from his reading of the written
description, then the description will suffice for purposes of
compliance
..."
See
Wulffsohn
supra
at 108-109 and the cases cited therein.
[28]
In
Christie:
The Law of Contract in South Africa (5
th
Edition)
at
p117, the learned author, referring to
Fourlamed
Ltd v Maddison
1977(1)
SA 333 (A) at 345, states that although s 2(1) of the Act requires
'a
deed of alienation',
it
is not necessary that the terms of the contract be all contained in
one document. Accordingly, I am entitled to have reference,
not only
to the contract itself, but also the annexure thereto in considering
whether the property sold is sufficiently identified.
[29]
As to the defendant's contention that the description of the
property is incomplete or uncertain because no annexure "A"
(as referred to in clause 1.1 of the contract) was annexed in order
to properly describe and/or identify the property sold, I
am
reminded of the complaint to which an exception is directed: namely,
a defect inherent in the pleading; admitting for the
moment that all
of the allegations in a pleading
are
true
,
even with such admission the pleading does not disclose a cause of
action.
[30]
In its amended particulars of claim, the plaintiff alleges (at
paragraph 3) that 'a
copy
of the deed of sale is annexed hereto marked "PC V".
Annexure
'2' forms part of annexure 'PC 7'to the pleading and, by necessary
implication, the plaintiff thus alleges that it forms
part of the
contract. Accordingly, the defendant is taken to have admitted, for
purposes of the exception, that this allegation
in the pleading is
true. Indeed, Mr Farlam conceded during argument that
'the
defendant has to accept that it
(i.e
Annexure "2")
is
an annexure to the agreement for purposes of the exception'.
[31]
Accordingly, there can be no merit in the defendant's contention on
this issue.
[32]
In
Van
Wyk v Rottcher's Saw Mills (Pty) Ltd
1948
(1) SA 983
(AD) at 989, the court stated that:
'There
must, of course, be set out in the written contract the essential
elements of the contract. One of such essential elements
is a
description of the property sold and, provided it is described in
such a way that it can be identified by applying the ordinary
rules
for the construction of contracts and admitting such evidence to
interpret the contract as is admissible under the parol
evidence
rule ... the provisions of the law are satisfied. This statement
must be taken subject to one caution or qualification
which I wish
to emphasize ... When a contract of sale of land is by law invalid
unless it is in writing, then it is not permissible
to describe the
land sold as the land agreed upon between the parties.'
[33]
The qualification expressed by the court in
Van
Wyk
supra
clearly has no application in the instant matter.
[34]
The court in
Van
Wyk
supra
went on to state the following at 990:
'Meticulous
accuracy of description is however not necessary ... The provision
that the contract of sale must be in writing cannot
mean that the
only evidence by which the property can be identified must be
contained in writing because that, as I shall show,
is impossible.
A
contract of sale of land in writing is in itself a mere abstraction,
it consists of ideas expressed in words, but the relationship
of
those ideas to the concrete things which the ideas represent cannot
be understood without evidence. For a skilled person the
evidence of
a mere inspection, coupled with his own local knowledge, may be
sufficient to identify the property described but,
even for him,
that much evidence at least and his own knowledge are necessary. In
a court of law, of course, in every case evidence
is essential in
order to identify the thing
which
corresponds to the idea expressed in the words of the written
contract. The abstract mental conception produced by the words
has
to be translated into the concrete reality on the ground of
evidence. It has been suggested that a written contract does
not
satisfy the provisions of the statute unless the mere reading of the
document is sufficient to identify the land sold without
invoking
the aid of any evidence dehors the document, but a moments
reflection and an appreciation of the fact that a written
contract
is merely an abstraction until it is related, by evidence, to the
concrete things in the material world will show at
once that
suggestion makes sec 30 demand performance of an impossibility.'
[35]
The property described in annexure 2 to the contract is:
'PROPERTY
:
Portion 2 of the Farm Weltevreden No 744
SITUATE
IN:
The
Administrative District ofPaari
SCALE
1/12 500 REF:
S
G Noting 3755, 3761'
[36]
The annexure appears to have been prepared by David Hellig &
Abrahamse Land Surveyors, whose address appears on the bottom
right-hand corner thereof. It is dated November 1998 and a file
number is reflected.
[37]
It is clear ex
facie
the
annexure that it was prepared six years prior to the conclusion of
the contract. I agree with plaintiffs submission that the
inference
that defendant seeks to draw, namely that certain information
contained in the annexure which contradicts the description
of the
property in clause 1.1 of the contract, such as the fact that a
Portion "A", ±7,47ha was to be deducted
from Farm
No 744/2, was intended to relate to the description of the property
for purposes of the conclusion of the contract,
is not correct. The
annexure was clearly annexed to identify the land as the area drawn
in bold. The survey which was done in
1998 is not further relevant
to a description of the property for the purposes of the sale in
2004.
[38]
On the annexure a piece of land, of irregular shape and the outline
of which is marked in bold black ink, is indicated.
[39]
The annexure is a scaled surveyor's drawing and the property which
is the subject of the sale can be clearly discerned thereon
with
reference to further landmarks appearing on the survey diagram.
There appears, for example, to the right of the identified
piece of
land, the words
'KLAPMUTS
RIVIER'
(describing
the adjoining land to the east). On the southern boundary of the
property the words
'KLAPMUTS
SOUTH LOCAL AREA'
probably
designate the southern boundary of the proclaimed Klapmuts South
Local Area township. Within the bold outline of the
property the
words
'SHED'
and
'HOUSE'
appear
in the southernmost portion thereof.
[40]
The northern boundary of the land is adjacent to a marking on the
diagram within parallel lines which probably designates
a railway or
road servitude. The western boundary is probably the western
boundary of the proclaimed Klapmuts South Local Area
township.
'
[41]
In
Vermeulen
v Goose Valley Investments (Pty) Ltd
2001
(3) SA 986
(SCA) at 998I-999A para [11] the court expressed the view
that the property sold is sufficiently identified if a layout plan
and/or diagram is attached to the contract, and the plan or diagram
contains data suggesting that the boundaries of the area can
be
identified
'on
the ground'
by
a surveyor without reference to the parties.
[42]
In
Vermeulen
supra,
the property sold was described as follows (at 993E):
'The
purchaser purchases the entire portion 48/444 excluding the portion
of land depicted in the diagram annexed hereto marked
"X"
which portion shall be referred to as the homestead portion and
excluding also the portion of land referred to
in para 4(a)
hereafter. The property purchased shall hereinafter be referred to
as the property.'
[43]
The respondent's contention (upheld by the court a
quo)
was
that the description of the property sold was insufficient to enable
it to be identified without recourse to the negotiations
which
preceded the signing of the contract, that the contract therefore
failed to comply with the requirements of
s 2(1)
of the
Alienation
of Land Act, 68 of 1981
, and that it was consequently invalid.
Alternatively, it was submitted to be void for vagueness at common
law. There had been
an addendum to the initial agreement concluded
between the parties and the appellant's claims were
based upon
the initial agreement and the addendum viewed as a composite whole.
At
998I-999F the Supreme Court of Appeal stated as follows:
1
'But
even if one was to confine one's attention to the lay-out plan "X"
and the diagram "A" there appears
to be a good deal of
data which collectively suggest very strongly that the boundaries of
the area to be excluded can be identified
on the ground by a
surveyor without reference to the parties. The diagram "A"
reflects existing erven which are named
... some of which share a
common border with the Homestead Portion. The point "K" is
plainly determinable. True north
is indicated and the diagram
appears to have been drawn to scale. Whether that is so will be
ascertainable by comparing the measurements
given in the Deeds
Registry of the named erven with their depictions in the diagram. If
that is indeed the case, the angles at
which boundary lines meet are
measurable and the length of the boundary lines is also measurable.
I
stress that these are not firm findings. It may be that some of the
data which I have postulated probably exists, and would
admissible
in evidence if it did exist, does not in fact exist. But that will
only be known once the appellant has been given
an opportunity to
adduce evidence. By allowing the exception, the court a quo deprived
the appellant of the opportunity of showing
that the land excluded
from the sale can be identified on the ground by reference to the
description of it in the layout plan
"X", the diagram "A",
and other data admissible in evidence. In short, it was not an issue
which lent itself
to fair resolution by way of exception ... The
same considerations apply to the contention that the transaction was
void for
vagueness at common law.
What
requires to be emphasised yet again is that evidence going to the
facilitation of the task of relating the description of
the res
vendita given by the parties in their written agreement to an area
on the ground is not objectionable provided that it
does not relate
to the negotiations between the parties or an ex post facto attempt
to discover their consensus, and provided
further that no breach of
the parol evidence rule is involved. As long ago as 1948 this court
in Van Wyk v Rottcher's Saw Mills
(Pty) Ltd
1948 (1) SA 983
(A)
recognised that a statutory provision that a contract of sale must
be in writing "cannot mean that the only evidence
by which the
property can be identified must be contained in the writing because
that ... is impossible".'
[44]
To my mind, the issue in the instant matter is whether the
description of the property in the contract as a whole (i.e.
including the annexure) is inadequate.
[45]
I agree with plaintiffs submission that certain incorrect detail
given in the description of the property in the contract
is not, in
itself, destructive of the sale. This must surely be the correct
interpretation of the principles enunciated in
Van
Wyk
supra.
In my view, the dominant descriptive part of the property is to be
found on the annexure to the contract. The fact that
there are
elements of incorrect description in the entire description of the
property is capable of resolution by a court after
hearing evidence
which will not relate to the negotiations between the parties or an
ex
post
facto
attempt
to discover their consensus, and without there being any breach of
the parol evidence rule.
[46]
Although a number of authorities were referred to during their
argument, defendant's counsel relied heavily on the case of
Magwaza
v Heenan
1979
(2) SA 1019
(A), especially at 1023C-F which, it was submitted, sets
out the framework and principles applicable and which reads as
follows:
'The
principles to be applied in considering whether a contract for the
sale of land complies with
(the
Formalities Legislation) ...
are
conveniently summarised in the judgment of Holmes J A in Clements v
Simpson
1971 (3) SA 1
(A). Of particular relevance in the context of
the present case are the following remarks of the learned judge (at
7F-8C):
"4.
The test for compliance with the statute in regard to the res
vendita is whether the land sold can be identified on the
ground by
reference to the provisions of the contract, without recourse to
evidence from
the
parties as to their negotiations and consensus
,
(my
emphasis)
5.
In
the aforegoing regard there are, broadly, two categories of
contract. The first is where the document itself sufficiently
describes the property to enable identification on the ground ...
The second category is where it appears from the contract that
the
parties intended that someone, whether the buyer, seller or third
party should select the res vendita from a genus or class
... 6.
Whether the parties intend their sale to fall within the first
category or the second category depends upon their language
in the
contract. If it appears therefrom that they intend the first
category, and their description of the property is deficient
in that
it does not enable identification on the ground, the sale is invalid
for want of compliance with the statute
[47]
It is clear that in the present matter what is in issue is the first
category of contract referred to in the
Clements
case.
At
10240C-E, the court in
Magwaza
supra
stated as follows:
'The
crucial issue is whether the trial court was right in concluding
that the parties had agreed to leave the determination of
one or
more of the boundaries of the subject-matter to a surveyor a
question which falls to be decided by reference to the language
of
the contract. In my opinion the language of the contract does not
sustain the construction put upon it by the trial Court.
Clause 1 of
the contract nowhere speaks of the determination of any boundary
being left to a surveyor ... In the present matter
the parties not
only failed to stipulate that any boundaries of the subject-matter
were to be left to the determination of an
outside party, but clause
1 clearly betrays their common intention that the whole perimeter of
the area of land sold would be
delineated by a red line traced on a
diagrammatic representation appended to the contract and forming an
integral part thereof.
In my opinion the conclusion is inescapable
that the contract was a nullity in that it manifestly failed to
conform to the requirements
of
section 1(1)
of Act 68 of 1957.'
[48]
However, as pointed out by counsel for the plaintiff, there are
three important points of distinction between the instant
matter and
Magwaza
supra.
In the latter case:
[48.1.]
No diagram or plan was annexed to the contract;
[48.2.]
The court was thus faced with dealing purely with an inadequate
description in the contract itself, in other words, the
inadequacy
had to be measured against the wording of the contract alone;
[48.3.]
The matter was not decided on exception at all and it was only after
evidence had been led that the court found that it
was still not
able to determine the identity of the property with reasonable
accuracy.
[49]
It was accordingly in that context that the court held that
rectification was not possible.
[50]
In
Swanepoel
v Nameng
2010
(3) SA 124
(SCA) one of the issues was whether an agreement of sale
of immovable property entered into between the parties was valid.
After
the parties had been unable to resolve their dispute directly,
the respondent applied to the Johannesburg High Court for an order
declaring that the appellant's purported cancellation of the
contract was invalid, and for an order to enforce specific
performance.
It should be noted that, inasmuch as the matter was
decided on application, it was thus effectively decided on evidence
since,
in application proceedings, the affidavits take the place not
only of the pleadings in an action, but also of the essential
evidence
which would be lead at a trial: see
Erasmus:
Superior Court Practice
at
B1-39 and the authorities cited therein. Although the court a
quo
was
not called upon to deal with the description of the property sold,
on appeal one of the grounds advanced by the appellant
was that the
contract was invalid for failure to comply with the provisions of
s
2(1)
of the
Alienation of Land Act, No 68 of 1981
in that the
property sold could not be identified by reference to the contract,
since the contract contained the incorrect erf
number.
[51]
At 127F-128D the court set out its view on the appellant's
contention as follows:
'In
the present matter all the essential elements for the conclusion of
a valid agreement for the sale of land were present. The
agreement
was in writing and signed by the parties thereto as required by the
subsection. More importantly, there was reference
in the parties'
agreement to an identifiable property (erf 1172), albeit in error.
Thus, standing alone, the agreement sufficiently
described the
subject-matter sold to enable identification of it on the ground.
The purchase price of the property (R470 000)
was set out and so
were details of how payment was to be effected. Clearly there was
certainty on all the formal elements required
by the subsection. On
the face of it therefore, the agreement of the parties complied with
the subsection.
As
the agreement of sale on the face of it complied with s 2(1) of the
Act, it was permissible for it to be amended or rectified,
by
substituting the correct description of the property sold ...It
therefore follows that the determination of the question whether
the
formalities prescribed by the subsection have been complied with
does not involve an enquiry into the intention of the parties
as to
the property sold. Indeed the section makes no reference to
intention. By omitting any reference to intention in respect
of the
property sold, the legislature was, I think, mindful of the fact
that the parties could still amend their agreement by,
for example,
exercising their common-law right to rectify it, if they so wished,
or make whatever corrections they considered
necessary. At the stage
of determining whether the formalities prescribed in s 2(1) of the
Act have been complied with one is
therefore not concerned with the
question whether the property identified in the agreement as the res
vendita, is in fact the
property that the parties intended to sell
to each other ultimately. The appellant's argument seems to be that
in order to comply
with s 2(1) of the Act the agreement had to
reflect the property sold as erf 1173 from the outset. The argument
ignores the fact
that the parties are as a matter of law entitled to
amend or rectify their agreement once a valid agreement is
concluded, and
the section does not impose any bar to this. The fact
that the agreement had to comply with the formalities prescribed by
s 2(1)
of the Act did not mean that the description of the property
could not be corrected or rectified at any later stage. The remarks
of Smalberger J A in Intercontinental Exports
[1999
(2) SA 1045
(SCA)]
are
apposite:
"Rectification
is a well established common-law right. It provides an equitable
remedy designed to correct the failure of
a written contract to
reflect the true agreement between the parties to the contract. It
thereby enables effect to be given to
the parties' actual
agreement..."
For
the above reasons I conclude that the agreement of sale entered into
between the appellant and the respondent complies with
the
requirements of the
Alienation of Land Act
... The appellant's
contention that the agreement did not comply with the provisions of
s 2(1)
is without merit'
[52]
In
Kriel
& Another v Le Roux supra
the
court was able, with reference to various features, including what
appeared to be indications of roads, buildings and walls
apparent on
the plan which was attached to the deed of sale, to determine that
the
res
vendita
was
adequately described for the purpose of compliance with the
prescribed formalities.
[53]
In the instant matter, Annexure 2 to the contract has a clearly
defined outline of the property which was sold. It appears
on a land
surveyor's scale diagram with a reference number. It is surrounded
by landmarks which should easily be identifiable.
The
fact that certain parts of the description in clause 1.1 of the
contract do not entirely correspond with details on the annexure
does not render the contract invalid.
[54]
Clause 1.1 of the contract describes the area of the property as
'approximately
18 Ha'.
That
the size of the area is not described with accuracy is not
destructive of the sale: See
Wulffsohn:
Formalities of Sale of Land Act
supra
at 118. The word
'approximately
must
be read having regard to the whole description of the property: See
Kruger
v Tuckers Land & Development Corporation
1973
(2) TPD 537
at 536A-B. Insofar as the description reflected in the
contract, or a diagram forming part of the contract, is able to give
a
reasonably clear picture of the land sold, then the reference in
the contract to an
'approximate'
area
will not of itself invalidate that valid description.
[55]
In my view, extrinsic evidence is indeed admissible in the instant
matter in light of the view expressed by the court in
Vermeulen
supra,
namely that objectively existing facts ex
facie
a
deed of sale may be taken into account in order to decide whether
the description of the property contained in the contract
enables it
to be ascertained on the ground, provided that it does not relate to
negotiations between the parties or an ex posf
facto
attempt
to discover the consensus. At the risk of repetition, the diagram
annexed to the deed of sale is a land surveyor's diagram.
There is a
plethora of information from which the exact location of the land
can be determined on the ground without reference
to the parties.
Evidence from the land surveyor would be admissible to determine the
boundaries of the property with certainty.
[56]
Defendant's counsel referred me to
KPMG
Chartered Accountants (SA) v Securefin Ltd & Another
2009
(4) SA 399
(SCA) at para 38 for purposes of considering the role of
evidence in contractual interpretation. However, to my mind, the
passage
cited in that judgment was based on completely different
facts and where the court a
quo
had
been subjected to 14 days of evidence by experts and factual
witnesses interpreting the contract, the parties having been
able to
create a record consisting of 6600 pages and exhibits. It is not
surprising that in those circumstances the Supreme Court
of Appeal
expressed the views which it did on how evidence in the
interpretation of contacts should be limited, if not excluded.
Evidence of the nature referred to in that case will certainly not
have to be led in the present case.
[57]
In light of my finding that the sale is valid, although the contract
contains, in part, incorrect information about the property,
rectification is permissible to correct any incorrect parts of the
description in clause 1.1 of the contract.
[58]
I now turn to deal with the defendant's third avenue of attack,
namely that if this court finds that the contract is rectifiable,
the rectification sought is not permissible in law because if the
contract is rectified in the terms sought by plaintiff, it
would
render the description of the property incomplete and uncertain and
would therefore have the same result, namely that there
is no sale.
[59]
The defendant's contentions in this regard are based on a detailed
analysis of certain information contained on the diagram
annexure 2,
which, it argues, would not correspond with the rectified
description of the property in clause 1.1 of the contract.
[60]
As previously pointed out, the surveyor's diagram was prepared some
six years prior to the conclusion of the contract and
the fact that
a proposed subdivision was referred to therein (i.e. six years
before the sale was concluded) can have no bearing
on the
description of the property in this case. In any event, if such
information on the surveyor's diagram is found to create
an
additional ambiguity, extrinsic evidence from the surveyor would be
permissible to deal with that
prima
facie
ambiguity.
[61]
Accordingly, in my view, the defendant's third avenue of attack is
also without merit.
[62]
I find that the issues raised by defendant regarding the description
of the property are not such as to lend themselves to
'fair
resolution by way of exception'
as
stated by the learned judge in
Vermeulen
supra.
[63]
In the premises the defendant's second and third contentions must
also fail.
[64]
In the result, I order that the defendant's exception is dismissed
with costs.
J I CLOETE, AJ