About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 165
|
|
Slabbert and Others v Slabbert and Others (A55/2011) [2011] ZAFSHC 165 (20 October 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A55/2011
In
the matter between:
LOUISA JOHANNA
SLABBERT
…..................................
First
appellant
STEPHANUS JACOBUS
VAN WYNGAARD
….........
Second
Appellant
CHANTELL
VAN WYNGAARD
…..................................
Third
Appellant
and
STEPHANUS JACOBUS
SLABBERT
…....................
First
Respondent
ELIZABETH MARIA
SLABBERT
….......................
Second
Respondent
REGISTRAR OF DEEDS
…........................................
Third
Respondent
CORAM:
EBRAHIM
et
VAN DER MERWE, JJ
et
MATHEBULA, AJ
_____________________________________________________
HEARD ON:
19 SEPTEMBER 2011
JUDGMENT BY:
EBRAHIM, J
DELIVERED ON:
20 OCTOBER 2011
[1] The first and second
respondents, who are married to each other in community of property,
instituted action against the three
appellants on the basis of a
contract of purchase and sale entered into between the first
respondent and the first appellant on
16 December 2002, claiming,
inter alia
, an order for the registration of transfer of a
certain immovable property, described as the farm Ventersbloem and
situated in
the district of Brandfort, into their names against
payment of R120 000,00 (“the purchase price”).
[2] At the conclusion of
the trial, the court
a quo
granted judgment in favour of the
respondents, in the following terms:
“
1. The sale
agreement between the first plaintiff and the first defendant is
declared to be valid.
The costs will stand over for later
determination.”
It is against this
decision that the appellants now appeal with the leave of the court
a
quo
.
[3] It appears from the
evidence, which is common cause, that the first appellant, who is the
mother of the first respondent, inherited
the farm Ventersbloem from
her husband on his death in September 1996. On 16 December 2002 she
signed a Deed of Sale (annexure
“A” to the pleadings), in
terms of which she agreed to sell the farm to the first respondent
for the sum of R120 000,00.
[4] The document
incorporating this sale agreement (annexure “A”) consists
of four pages. At the very top of the first
page the following words
appear “
Offer to Purchase
”
in bold type and medium sized lettering. Underneath that
appears in very small print, the following words “
which
constitutes a”
, then follows in very big bold
print the words “
Deed of Sale
”
and directly underneath this the words “
when
accepted”
again in very small print.
The remainder of the
document consists, as is usual, of printed provisions with blank
spaces into which have been inserted, in manuscript,
the appropriate
information and particulars.
[5] The first page, apart
from the heading described above, reads as follows (the handwritten
portions being shown in italics):
“
OFFER TO
PURCHASE
which constitutes a
DEED
OF SALE
when accepted
I, the undersigned,
Stefanus
Jacobus Slabbert
Identity No.
5405025089083
of
Wrightstraat 13
(insert
both physical
Westonaria
and
postal addresses)
(
hereinafter called ‘the
Purchaser’)
hereby offer to purchase from:
Louisa
JohannaSlabbert
Identity No.
2812120046087
o
f
Plaas Ventersbloem
(insert both physical
Distrik Brandfort
and
postal addresses)
(
hereinafter called ‘the
Seller’
)
the following property, namely:
Plaas Ventersbloem
Distrik Brandfort op 1 September
2004 en/of
Soos verder ooreengekom..
(
hereinafter called ‘the
Property’”
At the bottom right hand
corner of the first page appears the signature of the first appellant
and diagonally across it to the left
is the signature of the first
respondent.
[6] Adjacent to the
information inserted in manuscript on the printed pages and to any
changes or alterations to the printed words
appear the initiallings
effected by both parties to the sale. Page 2 of the document contains
a number of terms appertaining to
the transaction between the
parties. Of significance to the present appeal are clause 2 and
clause 4.
Clause 2 provides:
“
2. PURCHASE
PRICE.
The purchase price is the sum of R
120
000-00
(exclusive*/inclusive* of Value Added Tax) Payable by the
Purchaser to the Seller as follows:
Soos ooreengekom
..........................................................
........................................................................................................................................................................................
(NB: VAT IS ONLY APPLICABLE IF THE
SELLER IS REGISTERED AS A VENDOR UNDER THE VALUE ADDED TAX ACT).
(*delete that which is not applicable)”
Clause 4 provides:
“
4. TRANSFER
Transfer of the property shall be
passed by the Seller’s*/Purchaser’s* Conveyancer and
shall be given and taken upon
the Purchaser having complied with his
obligations in terms of clause 2 and 3 hereof. (*Delete that which is
not applicable)”
[8] The parties’
initials appear at the bottom right hand corner of each of pages 2
and 3 of the document and their full signatures
are appended in the
appropriate space designated for “purchaser” and “seller”
on page 4. The second respondent
did not sign the document.
[9] The first and second
respondents took occupation of the property in February 2005 and have
remained in occupation ever since.
The first appellant left the farm
in March 2005.
[10] At the time the Deed
of Sale was signed the farm had been the subject of a lease agreement
entered into between the first appellant
and a third party, the DPS
Trust. It was the first respondent’s evidence that it had been
envisaged by both the first appellant
and the first respondent that
registration of transfer would be effected into the names of the
respondents upon the termination
of the lease. In view of the
uncertainty surrounding the precise date of expiry of the lease, the
words “op 1 September 2004
en/of soos verder ooreengekom”
had been inserted in manuscript on page 1 of the sale agreement.
[11] As it transpired,
after the departure of the first appellant from the farm, a long and
protracted dispute arose between her
and the first respondent over
the precise basis upon which the respondents occupied the farm, in
light of the fact that the first
appellant was receiving no income
from the first respondent, but was still being held accountable by
creditors for expenses in
connection with the farm. An attempt was
made to put in place a signed lease agreement between them, but due
to an inability to
reach consensus on material aspects, nothing came
of it.
[12] Ultimately, the
first appellant, through her attorneys, notified the first respondent
by letter that no legal and valid contract
had come into existence
between them due to the vagueness of the agreement. The first
appellant then proceeded to sell the farm
to the second appellant,
her grandson, who is married in community of property to the third
appellant.
On 20 March 2007, an
agreement was entered into by the appellants in terms whereof the
first appellant sold Ventersbloem farm to
the second and third
appellants for the sum of R300 000,00. The property was subsequently
registered in the names of the second
and third appellants.
[13] In their particulars
of claim annexed to the summons instituting action in the court
a
quo
, the respondents claimed that the setting aside of the
registration of the transfer of the property into the names of the
second
and third appellants was warranted on the grounds of the prior
knowledge of the second and third appellants of the sale agreement
entered into between the first appellant and the first respondent on
16 December 2002 (“the first sale”).
[14] In their plea, the
second and third appellants denied such knowledge and denied the
validity of the first sale agreement on
two grounds:
(a) that it did not
comply with
section 2(1)
of the
Alienation of Land Act 68 of 1981
in
that the time for payment of the purchase price was not stipulated in
writing; and
(b) that the provisions
of
section 15(2)(g)
of the
Matrimonial Property Act 88 of 1984
had
not been complied with as no written consent of the second respondent
to the purchase of the farm had been obtained by the
first respondent
prior to signing the contract with the first appellant.
[15] At the commencement
of the trial an order of separation of issues was made by agreement
between the parties which had the effect
that the first and second
respondents had to prove both the validity of the contract of 16
December 2002 and that the second and
third appellants had knowledge
thereof. The learned trial judge appears to have overlooked the issue
relating to the second and
third appellants knowledge of the first
sale in her deliberations and failed to pronounce upon it in her
judgment which is singularly
lacking in any analysis thereof. I shall
revert to this aspect in due course.
[16] On the issue
pertinent to the validity of the first sale agreement she appears to
have pinned her colours to the mast symbolized
by clause 4 of the
agreement. I quote from her judgment.
“
In my view
it can be inferred from clause 4 that transfer to Stefanus Jacobus
Slabbert should be given and taken by him upon payment,
inter
alia
,
of R120,000-00. It is evident therefore that it was understood by the
parties to the agreement that the purchase price will be
paid in cash
and not instalments.”
For the convenience of
the reader, I shall set out the provisions of clause 4 once again.
Clause 4 provides:
“
4. TRANSFER
Transfer of the property shall be
passed by the Seller’s*/Purchaser’s* Conveyancer and
shall be given and taken upon
the Purchaser having complied with his
obligations in terms of clause 2 and 3 hereof. (*Delete that which is
not applicable)”
[17] Section 2(1) of the
Alienation of Land Act 68 of 1981 (“the Act”) provides:
“
2
Formalities in respect of alienation of land
(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.”
It is
trite that the general object of this Statute is to avoid or, at the
least, reduce to a minimum, uncertainty, disputes and
possible
malpractices such as perjury and fraud in contracts for the sale of
immovable property. To that end the Act requires all
the essential
and material terms of the contract to be in writing.
VAN
WYK v ROTTCHER'S SAW MILLS (PTY) Ltd
1948 (1) SA 983
(AD)
The price is an essential
and material term of the contract and accordingly must be stated in
writing.
The time and method of
payment of the purchase price is also an essential term of the
contract and must be stipulated in writing.
KUPER v BOLLEURS
1913 TPD 334
;
CHRETIEN AND ANOTHER v BELL
[2010] 2 ALL
SA 428
(SCA)
A written contract for
the sale of immovable property which leaves the method of payment
vague or leaves it over for future negotiation,
is void
ab initio
and cannot be rectified.
JAMMINE v LOWRIE
1958 (2)
SA 430
(T);
PATEL v ADAM
1977 (2) SA 653
(A)
[18] I am prepared to
accept that in terms of the Deed of Sale the purchase price was
payable in cash. But the essential question
was whether a time of
payment was stipulated in the Deed of Sale. This question was not
considered by the trial court.
[19] The Deed of Sale
clearly contains no time for payment of the purchase price. On the
contrary, the words “soos ooreengekom”
signify that
agreement was reached in this regard but not put down in writing.
This accords with the evidence, namely that it was
agreed that the
purchase price was payable on expiry of the existing lease or any
extension thereof.
[20] Accordingly, the
court
a quo
was erroneous in its finding that the contract was
not void. As no time of payment of the purchase price was stipulated
in writing
in the contract, annexure “A”, I find that it
does not comply with
section 2(1)
of the
Alienation of Land Act 68 of
1981
and is therefore unenforceable.
[21] The second issue in
the appeal, that of the first respondent’s non-compliance with
section 15(2)(g)
of the
Matrimonial Property Act 88 of 1984
, has
fallen away due to Mr. Benade’s wise and timely concession that
the distinction drawn by Mr. Reinders between a Contract
of Sale and
a Deed of Alienation, is sound. A contract is defined as a Deed of
Alienation under which land is sold against payment
by the purchaser
to, or to any person on behalf, of the seller, of an amount of money
in more than two instalments over a period
exceeding one year.
A Deed of Alienation is
defined as a document or documents under which land is alienated.
Thus a sale agreement of immovable property
is a Deed of Alienation
whilst an Agreement of Sale of immovable property in terms of which
the purchase price is payable in at
least three instalments over more
than a year, is a special kind of Deed of Alienation, which for
purposes of the
Alienation of Land Act 68 of 1981
is called a
“contract”.
It is only a contract in
terms of the
Alienation of Land Act 68 of 1981
which is deserving of
the protection afforded in
section 15(2)(g)
of the
Matrimonial
Property Act 88 of 1984
.
Section 15(2)(g)
provides:
“
15
Powers of spouses
(2) Such a spouse shall not without
the written consent of the other spouse-
(g)
as
a purchaser enter into a contract as defined in the Alienation of
Land Act, 1981 (
Act
68 of 1981
),
and to which the provisions of that Act apply;”
Because the alleged
contract between the first appellant and the first respondent was
purportedly a cash sale and not one in terms
of which the purchase
price was payable in instalments, it does not fall within the ambit
of the protection afforded by section
15(2)(g) as there is no danger
of the one spouse (i.e. first respondent) dissipating the financial
resources of the joint estate
without the consent of the other spouse
(second respondent).
AMALGAMATED BANKS OF SOUTH AFRICA BPK v DE
GOEDE EN 'N ANDER
1997 (4) SA 66
(SCA) AT 74 B – E
In view of the conclusion
I have reached as regards the unenforceability of annexure “A”,
it is not necessary to dwell
on this aspect of the matter any
further.
[22] In my judgment the
first and second respondents in any event failed to prove the
requisite knowledge of the subsequent purchasers,
the second and
third appellants. When one is dealing with the question of double
sales of immovable property, as in the matter
under consideration,
the preference to real rights is tempered by an equitable doctrine in
our law called the Doctrine of Notice
(in Afrikaans “die
Kennisleer”). In
CUSSONS EN ANDERE v KROON
2001
(4) SA 833
(SCA) at 839 para [9] Streicher JA described the operation
of the Doctrine.
“
[9]
In die geval van dubbelverkope word 'n beginsel bekend as die
kennisleer toegepas. Waar A sy goed aan B verkoop en daarna C
dieselfde goed verkoop en oordra aan C, wat bewus was van die regte
van B, is B geregtig op kansellasie van die verkoping en van
die
oordrag van die goed, op grond daarvan dat die verkoper en C geag
word op 'n bedrieglike wyse teenoor hom op te getree het
(
Tiger-Eye
Investments (Pty) Ltd and Another v Riverview Diamond Fields (Pty)
Ltd
1971
(1) SA 351 (K)
op
358F - H). Werklike bedrog word nie D vereis nie. Blote kennis aan
die kant van C van die bestaan van B se vorderingsreg is voldoende
(
Kazazis
v Georghiades en Andere
1979
(3) SA 886 (T)
op
893). Die verwysings na bedrog in sake van hierdie aard dien slegs as
aanknopingspunt in die regsisteem ter onderskraging van
die
kennisleer (
Associated
South African
E
Bakeries
(Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd en
Andere
1982
(3) SA 893 (A)
(
ASA
Bakeries
)
op 910E).”
Thus
if it is shown that second and third appellants, at the time of
entering into the sale with first appellant, knew that the
Ventersbloem farm had already been sold by first appellant to first
respondent, they would, despite transfer having been registered
in
their names, be enjoined to relinquish the farm in favour of the
first respondent. It is actual knowledge which is required
and this
may take the form of
dolus
eventualis
,
i.e. circumstances which show that the second and third appellants
ought reasonably to have known of the prior sale, but chose
to ignore
it and proceeded to purchase the same property from the first
appellant.
MERIDIAN BAY RESTAURANT (PTY) LTD AND
OTHERS v MITCHELL NO
2011 (4) SA 1
(SCA)
The knowledge of the
second and third respondents is essentially a question of fact and
one primarily for the decision of the trial
court. It is the party
alleging knowledge who carries the onus of proving it, i.e. the first
respondent in this case.
PILLAY v KRISHNA AND ANOTHER
1946 AD 946
[23] No evidence
whatsoever was adduced at the trial to show that either the second or
the third appellants were aware of the prior
sale. The second
appellant testified that he knew the farm as it belonged to his
grandparents and he had visited the farm on many
occasions as a
youth. He testified however that because of family feuds he had last
been on the farm in 1999. He bought the farm
in March 2007 and it was
registered in his and his wife’s name in May 2007. He denied
any knowledge of the earlier sale at
the time he purchased the farm
and said that the first time he had heard of the first sale, was in
August 2007 through the conveyancing
attorneys, who had attended to
the registration of the property into his name. Mr. Reinders made an
attempt to argue that the version
of this witness was improbable. He
also made a half-hearted submission that second appellant must be
taken to have been aware of
the first sale between the first
appellant and first respondent prior to concluding the sale agreement
in respect of the same farm
with the first appellant, because the
same set of attorneys acted as his conveyancers and first appellant’s
attorneys of
record in her dispute with first respondent over the
farm. (See
BASSON v REMINI AND ANOTHER
1992 (2) SA 322
(N).) Even if I were to assume in Mr. Reinders’ favour (which I
do not do), it would assist the case of his clients not in
the least,
because constructive knowledge has no application to this particular
enquiry.
GRANT AND ANOTHER v STONESTREET AND OTHERS
1968 (4) SA 1
(A)
The credibility of the
second appellant was a critical factor in the decision of this case.
Despite that, the trial court made no
credibility findings in its
judgment. It is not possible to reject the evidence of the second
appellant on the record. Consequently
Mr. Reinders’ task in
argument that actual knowledge is to be imputed to the second
appellant on the strength of the evidence
as it stands, was not
without its difficulties and in fact proved to be an insurmountable
hurdle for him to cross.
[24] On all accounts
therefore, the second and third appellants must be allowed what is
rightfully due to them, as envisaged by
the title deed registered in
their name. The third respondent was joined in the proceedings merely
as a formality. No order has
been sought against him in this appeal.
[25] At the hearing of
the appeal, we granted two applications for condonation brought by
the appellants for the late noting of
their appeal in terms of Rule
49(2) and for the late filing of their security for costs of the
appeal in terms of Rule 49(13) of
the Uniform Rules of the High
Court.
[26] Accordingly the
order I make is the following:
1. The appeal succeeds
with costs.
2. The orders of the
court
a quo
are set aside and substituted with the following
order:
“
(i)
It is declared that the plaintiffs are not entitled to transfer of
the farm Ventersbloem 934, Brandfort from the second and
third
defendants.
(ii) The plaintiffs are
ordered to pay the costs of the trial.”
_____________
S. EBRAHIM, J
I
concur.
________________________
C.H.G. VAN DER MERWE,
J
I
concur.
___________________
M.A. MATHEBULA, AJ
On
behalf of appellants: Adv. H.J. Benade
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
Ref.
T O’Reilly/Adele/MXS2229
On
behalf of first two respondents: Adv. S.J. Reinders
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
(Ref.
DP Rossouw/sa/L02313)
/sp