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[2007] ZASCA 107
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Exdev (Pty) Ltd v Yeoman Properties 1007 (Pty) Ltd and Others (314/06) [2007] ZASCA 107; [2007] SCA 107 (RSA); [2008] 2 All SA 223 (SCA) (19 September 2007)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO:314/06
Reportable
In the
matter between
EXDEV
(PTY) LTD
.......................
APPELLANT
and
YEOMAN
PROPERTIES 1007 (PTY) LTD
.......................
1
ST
RESPONDENT
ROYAL
ALBATROSS PROPERTIES 185 (PTY) LTD
.......................
2
ND
RESPONDENT
JACOBUS
JOHANNES STEYN
.......................
3
RD
RESPONDENT
CORAM:
NAVSA, LEWIS, and MLAMBO JJA
HEARD:
24 AUGUST 2007
DELIVERED
:
19 SEPTEMBER 2007
SUMMARY:
An option
for the purchase of immovable property is not invalid merely by
reason of its silence on the terms of payment of the purchase
price.
In the absence of express agreement the law implies these terms.
Neutral Citation:
This judgment may be referred to as Exdev v Yeoman Properties [2007]
SCA 107 (RSA)
JUDGMENT
LEWIS JA
[1] This appeal is against an order of the
Pretoria High Court (Makhafola AJ) refusing an interdict
pendente
lite.
The appeal is not opposed, and
other litigation between the parties is still pending. Leave to
appeal against the refusal of the interdict
was granted by the high
court.
[2] The appellant (Exdev) had exercised an option to purchase
immovable property from the first respondent (Yeoman Properties).
Before
transfer was effected to Exdev it discovered that Yeoman
Properties had sold the same property to the third respondent, acting
for
a company to be formed, the second respondent (Royal Albatross).
Exdev accordingly applied for an interdict to prevent the transfer
of
the property to Royal Albatross pending the final adjudication of the
litigation. The interdict was refused on the basis that
the option
was invalid, being silent as to the terms of payment.
[3] The day after leave to appeal was granted to
Exdev, Yeoman Properties transferred the property to Royal Albatross
pursuant to
the second sale. Exdev instituted action in the Pretoria
High Court against both Yeoman Properties and Royal Albatross
claiming transfer
to it of the property or alternative relief. The
respondents have raised numerous defences, both to the initial
application and to
the action. Only one is germane to this appeal –
the validity of the option granted by Yeoman Properties to Exdev.
Related
to this are the pleas of
res
judicata
raised by the respondents (as
defendants) in the action. They plead that the validity of the option
was determined by the high court
when it refused the interdict
pendente lite
.
Since the raising of this plea (and also the defence of
lis
alibi pendens
, that is, the appeal to
this court), no further steps have been taken in the action. This
court was informed from the bar, however,
that the property in issue
has been sold and transferred yet again.
[4] The sole issue determined by the court below is the validity of
the option and that, as I have said, is the only issue before
us. But
now that the property has in fact been transferred to other parties,
and the relief sought – restraining the transfer
of the
property – is no longer possible, it may be argued that the
issue is academic and that we are precluded from considering
the
appeal by s 21A of the Supreme Court Act 59 of 1959. The appeal may
thus, on that basis, have no practical effect.
[5] In my view, however, the issue of the validity
of the option is still live between the parties: the mere fact that
the plea of
res judicata
has
already been raised leads to the conclusion that the decision of the
court below may well preclude the trial court, in the action
between
the parties, from reconsidering the question of the validity of the
option on the same basis. The reason for the decision
of the court
below is open to doubt and thus should be clarified. Moreover,
although it is not desirable that issues between parties,
and
appeals, should be heard on a piecemeal basis, especially where the
appeal will not be dispositive of all the issues, in this
case an
injustice to Exdev may well be prevented by a decision of this court
on the legal point at issue.
[6] I turn thus to the issue to be decided. When
the application for the interim interdict was argued, Yeoman
Properties raised a
point
in limine
:
the option to purchase the property, it contended, was invalid
because it was silent on the method of payment of the price and as
to
when payment had to be made. The high court accepted this argument.
Regrettably it did not have regard to the basic principle,
applied
consistently in our law, that in the absence of express agreement on
the time for and method of payment, the price is payable
in cash
against delivery – that is, in the case of immovable property,
transfer.
1
The court thus erred in finding on this basis, and
its finding should not prejudice Exdev in subsequent litigation.
[7] I must emphasise that this court is not in a position to
determine the validity of the option, given the other defences raised
by Yeoman Properties, which are based on the facts. Only the trial
court will be in a position to consider those. But on the point
of
law I consider that Exdev is entitled to succeed in its appeal. An
option to purchase immovable property (and of course a simple
contract for the sale of immovable property), is not invalid merely
because it does not set out the method of and time for payment.
In
the absence of express agreement the law implies these terms.
[8] The appeal is upheld, with costs on an unopposed basis.
The order of the court below is replaced with the following:
‘
The point
in
limine
is
dismissed with costs.’
_____________
C H Lewis
Judge of Appeal
Concur:
Navsa and Mlambo JJA
1
See,
for example,
Breytenbach v Van Wyk
1923 AD 541
at 546;
Slomowitz v Van der Walt
1960 (4) SA 270
(T) at 275-276;
Pienaar v Fortuin
1977 (4) SA 428
(T) at 429G-H and
Kennedy
v Botes
1979 (3) SA 836
(A). Contrast
Patel v Adam
1977
(2) SA 653
(A), where the contract included a term relating to the
payment of the price in instalments, but was held to be invalid
because
the amount of the instalments to be paid was left to the
purchaser to determine.