Fraser and Another v Viljoen (621/06) [2008] ZASCA 24; 2008 (4) SA 106 (SCA); [2008] 3 All SA 233 (SCA) (27 March 2008)

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[2008] ZASCA 24
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Fraser and Another v Viljoen (621/06) [2008] ZASCA 24; 2008 (4) SA 106 (SCA); [2008] 3 All SA 233 (SCA) (27 March 2008)

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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number : 621/06
In the matter between :
HENRY FRASER
...
FIRST
APPELLANT
MAGDALENA GERTRUIDA FRASER
...
SECOND
APPELLANT
and
JOHANNA JACOMINA VILJOEN
...
RESPONDENT
CORAM : SCOTT, CAMERON, MTHIYANE, COMBRINCK, CACHALIA
JJA
DATE : 7 MARCH 2008
DELIVERED : 27 MARCH 2008
Summary
: Sale of immovable
property – authorising other party to insert material terms after
delivery of uncompleted document – non-compliance
with s 2(1)
of
Alienation of Land Act 68 of 1981
Neutral citation:
Fraser v
Viljoen
(621/2006)
[2008]
ZASCA 24
(27 March 2008)
JUDGMENT
COMBRINCK
JA
/
COMBRINCK JA
:
[1] This appeal concerns yet another of the seemingly
unending number of cases where it is in issue whether a contract for
the sale
of immovable property complies with the provisions of the
Alienation of Land Act, 68 of 1981
(‘the Act’). The appellants
seek to enforce an agreement in terms of which they purchased a flat
situated at Blythedale Beach
KwaZulu-Natal. The respondent claims the
agreement is null and void due to non-compliance with
s 2(1)
of the
Act
1
.
[2] The question for decision is one of law and is to be
determined against the following factual background. The appellants
occupy
a flat described as 29 Wild Waves, Blythedale Beach, as
lessees in terms of a monthly lease. The respondent is the lessor and
owner.
In April 2003 pursuant to a telephone call in which Mr Viljoen
(respondent’s husband) confirmed a willingness to sell, the
appellants
sent an offer in the form of an uncompleted printed form
relating to the purchase and sale of property held under sectional
title
to respondent. The names of the parties were left blank as was
a description of the property. The purchase price of R180 000
was typed in in the appropriate clause as was the name and address of
the appellants’ conveyancer. The offer was unsigned. It was
forwarded under cover of a letter in which the following was said:
‘
Dear Mr Viljoen
Re: Purchase and sale Agreement.
Kindly sign the enclosed agreement and post it back to
me. You will notice that paragraphs 2.3. (a) is not completed as I do
not have
the description. Please let me have a copy of the title deed
to enable us to draw the transfer papers properly. As soon as I
receive
the documents from you we will go ahead with the registration
and transfer.
Thanking you in anticipation
Henry Fraser.’
On receipt of the document Mr Viljoen telephoned the
appellants and advised that he was prepared to accept a price of
R185 000.
The first appellant then agreed to pay this price and
requested the respondent to alter the figure and return the document.
When
the document was returned to the appellants, it now contained
the following in manuscript:
(i) The name of the seller (respondent);
(ii) Alteration of the price to R185 000;
(iii) The signature of respondent as seller together
with the date and place of signature;
(iv) The signature of two witnesses;
(v) The initialling of all alterations and each page by
respondent and her two witnesses.
The document was inchoate containing neither the name of
the purchasers, nor their signature, nor a description of the
property. The
appellants then obtained the full description of the
property, inserted it in the document and they both signed it
omitting, however,
to record the date of signature. The document was
then given to the appellants’ conveyancer to effect transfer.
Thereafter for
more than a year the conveyancers attempted in vain to
get respondent to sign the documents necessary to effect transfer.
She did,
however, during February 2004 send a copy of her identity
document when called upon to do so. Eventually by a letter dated 18
May
2004 the respondent indicated that she was no longer interested
in disposing of her property. In a subsequent affidavit she said
that
they were no longer interested in selling as they intended moving
into the flat and spending their retirement there.
[3] The appellants on notice of motion sought a
declaratory order to the effect that the contract of purchase and
sale was valid and
binding and that an order should issue compelling
respondent to sign the necessary documents to effect transfer. The
application
was opposed on several grounds. The matter came before
Pillay J in the Durban High Court. He dismissed the application on
two grounds,
first he held that the date of conclusion of the
agreement was material as it impacted on other terms and the omission
was fatal
to the validity of the agreement. Second, he followed
Sayers v Khan
2002 (5)
SA 988
(C) and found that the omission in the agreement to reflect
the provisions of
s 2(2A)
of the Act (the so-called ‘cooling
off’ period) rendered the agreement null and void. (The judgment
was handed down before this
court held that
Sayers
v Khan
was wrongly decided – see
Gowar
Investments (Pty) Ltd v
Section 3
Dolphin Coast Medical Centre
CC
2007 (3) SA 100
(SCA).)
Leave to appeal was granted by the court
a quo
because of the conflicting judgments in the
provincial divisions in the
Sayers
and
Gowar Investments
cases
(the latter reported in
2006 (2) SA 15
(D).) From the judgment of
Pillay J it does not appear that the issue raised before us was
argued and the learned judge obviously
did not deal with it.
[4] The issue debated before us was whether in the light
of the decisions of this court in
Fourlamel
(Pty) Ltd v Maddison
1977 (1) SA 333
(A) and
Jurgens v Volkskas Bank Ltd
[1992] ZASCA 152
;
1993
(1) SA 214
(A), the agreement complied with
s 2(1)
of the Act.
Fourlamel
dealt with a
deed of suretyship which was incomplete when signed by the surety. At
that stage the name of the co-surety did not appear
on the document
nor had he signed it. Neither the name of the creditor nor that of
the principal debtor had been filled in. These
details were inserted
at a later stage after signature. It was held that in order to comply
with the section all the material terms
had to be contained in the
document at the time of signature. In
Jurgens
(also a case dealing with a deed of suretyship) greater
leeway was given. In that case when the sureties signed the deeds
they were
incomplete and inchoate. The blank spaces were, however,
filled in by secretaries after signature and then delivered to the
bank
for its signature. It was held that it is immaterial when the
document was signed by the first party, whether before or after the
missing terms had been filled in or alterations made, as long as all
the material terms were in the document when it was delivered
to the
other party. The time of delivery to the other party for signature is
therefore crucial and not the time of signature by the
first party.
It was common cause that the reasoning in these cases is equally
applicable to incomplete deeds of sale of immovable
property. (See
Just Names Properties 11 CC v Fourie
2008
(1) SA 343
(SCA).)
[5] Counsel for the appellants conceded that on the
authority of
Jurgens
there
had been non-compliance with
s 2(1)
, it being common cause that
the document in question did not contain a description of the
property nor the names of the purchasers
when delivered to the
appellants by the respondent. He argued however, that the respondent
had appointed the appellants as her agent
for the purpose of
completing the document by inserting a description of the property
and their names as purchasers. On carrying
out their mandate the
agreement became valid and binding. Respondent’s counsel disputed
the contention that on the papers it could
be found that the
appellants had been given the authority contended for by them. Even
if they were so authorised, so it was submitted,
to allow such
evidence would open the door to the very mischief the Act was
intended to address.
[6] I shall accept without deciding that the respondent
did authorise the appellants to fill in a description of the
property. The
question is, were the provisions of
s 2(1)
satisfied when appellants, duly authorised, completed the document
when respondent had already signed it? The question was considered
in
Fourlamel
where Miller
JA at 344A-D had the following to say:
‘
What is important to note in that
connection, however, is that the question left open by the Court [in
the matter of
Levin
v Drieprok Properties (Pty) Ltd
1975 (2) SA 397
(A)] related
to an alteration made by the offeror's agent, not by any other
person. Here, the additions to the deed of suretyship
were not made
by the respondent or his agent. The suggestion made by appellant's
counsel that by signing the deed in blank the respondent
tacitly
authorized the appellant to fill in the blanks on his behalf, is
untenable. Apart from the circumstance that the appellant,
in a
transaction of the kind that requires the terms of the agreement to
be in writing, would be acting in the dual capacity of one
of the
contracting parties and the agent of the other contracting party (as
to which, see
Restatement
of the Law
, 2nd
ed., vol. 1, para. 24, comment b), there is nothing in the papers to
warrant an inference that such authority was given to the
appellant
or any other person.’
Although
obiter
,
the reasoning is persuasive. The comment in the Restatement of the
Law referred to by the learned judge reads:
‘
(b) A party to a transaction
within the Statute of Frauds cannot orally confer power upon the
other party to the transaction to sign
effectively a memorandum
required to satisfy the provisions of the Statute.’
The same attitude seems to have been adopted in English
Law. See
Wilson & Sons v Pike
[1949]
1 KB 176
at 180 where the decision in
Farebrother
v Simmons
(1822) 5 B and A – 333 was quoted
with approval but distinguished on the facts. The following was
quoted in
Wilson
from
the head note of the latter case:
‘
The agent contemplated by
s 17
of
the Statute of Frauds, who is to bind a defendant by his signature,
must be a third person, and not the other contracting party;
and
therefore, where an auctioneer wrote down the defendant’s name by
his authority opposite the lot purchased: Held, that in an
action
brought in the name of the auctioneer, the entry in such book was not
sufficient to take the case out of the Statute.’
The reason for adopting this approach is not difficult
to find. It is sought to obviate disputes about the terms of
agreements, exclude
the possibility of fraud and perjury and avoid
unnecessary litigation – the very mischief these types of statutes
are aimed at.
See in this regard
Johnston v
Leal
1980 (3) SA 927
(A) at 946H per Corbett
JA:
‘
The other possible obstacle to the
admission of extrinsic evidence in this case is
s 1
(1) itself and
the policy underlying it, viz as already indicated, the prevention of
uncertainty and disputes concerning the contents
of contracts for the
sale of land and of possible malpractices in regard thereto. The main
effect of the section is to confine the
parties to the written
contract and to preclude reliance on an oral consensus not reflected
therein.’
See further
Fourlamel (supra)
at
page 343A and
Philmatt (Pty) Ltd v Mosselbank
Developments CC
1996 (2) SA 15
(A) at 25C-D.
Were the one party to an agreement of sale of immovable property to
appoint the other to be its agent for the aforementioned
limited
purpose of filling in a description of the property sold and the name
of the purchaser the object of the legislation would
be nullified. It
would open the door to uncertainty as to precisely what the parties
orally agreed upon and what the other party
was authorised to do. The
object of certainty would disappear. Had the Frasers returned the
document to Viljoen for signature after
the description of the
property and the names of the purchasers had been inserted, there
would have been a valid and binding agreement.
Unfortunately this was
not done. It follows that, in my view, the agreement is void for
non-compliance with the Act. This conclusion
makes it unnecessary to
consider the question whether the date of conclusion of the agreement
in this particular case was material.
[7] It follows that the appeal must fail. The following
order is made:
The appeal is dismissed with costs.
………………………
P C COMBRINCK
JUDGE OF APPEAL
Concur
:
SCOTT JA
CAMERON JA
MTHIYANE JA
CACHALIA JA
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 both
parties thereto or by their agents acting
on their written
authority.’