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[2009] ZAFSHC 141
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S and Another v S and Others (4121/2007) [2009] ZAFSHC 141 (3 December 2009)
FREE
STATE HIGH COURT. BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 4121/2007
In
the case between:
S
J S
…........................................................................................
1
st
Plaintiff
E
M S
….......................................................................................
2
nd
Plaintiff
and
L
J S
….........................................................................................
1
st
Defendant
STEPHANUS
JACOBUS VAN WYNGAARD
…..................
2
nd
Defendant
CHANTELL
VAN WYNGAARD
….......................................
3
rd
Defendant
REGISTRAR
OF DEEDS
…......................................................
4
th
Defendant
JUDGEMENT:
MOCUMIE,
J
HEARD
ON:
12
May 2009 & 14 September 2009
DELIVERED
ON:
3
December 2009
MOCUMIE
J
[1]
The plaintiffs instituted a claim in this Court for the following
relief (translated):
1.1
An order declaring the transfer of the property, Venterbloem,
Brandfort, from the name of the first defendant into the names
of
the second and third defendants to be null and void and directing
the reversal of the transfer into the name of the first
defendant.
1.2
The transfer of the aforementioned property into the name of the
plaintiffs against payment by the plaintiffs to the defendants
the
sum of R120 000-00.
1.3.
Costs of suit, alternatively to the aforegoing, payment of the sum
of R453 696-12 by first defendant to the plaintiffs.
1.4.
Interest on the abovementioned amount [no rate stipulated] a
tempore
morae.
1.5.
Costs of suit.
[2]
The fourth defendant, the Registrar of Deeds, abides the decision of
the Court. In their joint plea the first three defendants
("the
defendants") deny that first defendant sold the property, a
farm, to the plaintiffs. They also counterclaim for
the ejectment of
the plaintiffs from the property with its improvements and payment
of the amount of R5000,00 per month or an
amount that the Court
deems reasonable for the occupation and utilization of the property,
calculated from 16 May 2007 until
the date of ejectment; costs of
suit; further and/or alternative relief.
[3]
At the beginning of the trial the parties agreed to the separation
of issues. An agreement was formulated in terms of which
the Court
was required to determine the validity of the contract first as set
out in paragraphs 1 to 7 of the particulars of
claim. All other
issues contained in paragraphs 8 to 13 of the particulars of claim
were to be determined subsequently. This
agreement was made order of
this Court.
[4]
The plaintiffs are husband and wife and are married in community of
property. The second and third defendants are also husband
and wife.
The first defendant is first plaintiff's mother and second defendant
is first plaintiff's nephew. This is therefore
a family dispute.
First plaintiff's father died in 1996.
[5]
First plaintiff testified that he worked for Westonia Gold Mines in
Carletonville for a considerable period when he resigned
in 2004. He
then moved with his immediate family to the farm in dispute. Prior
to moving there he used to visit his home during
vacations. Because
of his interest in farming the first defendant orally offered to
sell him the farm for R120 000,00 because
she said she was old and
had no one to help her with its running. He also accepted the offer
orally. Some time in December 2002
the oral agreement was reduced to
writing in the presence of his wife, his sister Karolina, and a
third person whose name he
could not remember. According to him the
two of them agreed that the property was to be transferred into the
plaintiffs' name
on 1 September 2004 or any date agreed upon
thereafter. The written contract was handed in as exhibit "A"
and reflects
the date "op 1 September 2004" next to the
handwritten description of the property.
[6]
In 2005 tension developed in the family. The first defendant left
her home to stay with her daughter, the first plaintiffs
younger
sister, in Bloemfontein. As a result of the fall out and due to the
existence of a lease contract with a certain Mr Botha
the transfer
of the property was kept in abeyance. The first defendant
thereafter, through her lawyers, made a fresh offer to
the
plaintiffs for the same property for R 360 000, 00 which first
plaintiff, acting for both spouses, turned down. She also
unilaterally increased the lease from R 1 200, 00 to R5000, 00 per
month. First plaintiff also refused to pay the increased rental.
In
a letter dated 2 May 2006 first plaintiff learned that his mother,
the first defendant, denied the existence of the written
agreement,
Exhibit "A". When he supplied the attorneys with a copy of
the agreement the attorneys alleged that the
agreement was vague and
unenforceable. In a letter dated 9 February 2007 the first
defendant's attorneys insisted on the increased
purchase price of
R360 000, 00. On 4 May 2007 first plaintiff was informed that the
farm was in the process of being sold to
a third party or willing
buyers. On 1 June 2007 he learned that second and third defendants
were the new registered owners of
the farm and that he should vacate
the property by 1 July 2007. When the matter could not be resolved
amicably the plaintiffs
approached this Court for the relief set out
in paragraph 1 above.
[7]
During the course of the hearing it emerged that the first defendant
disputed the authenticity of the signatures or initials
attached to
exhibit "A". As the dispute could not be resolved through
the oral testimony by the parties the trial was
adjourned and the
disputed contract document was sent for forensic analysis by a hand
writing, disputed documents and finger
print expert. Subsequently
per agreement between the parties the report by Lt Colonel Gerhardus
Cloete, a hand writing expert
in the Free State, was admitted as
exhibit C. The result of his analysis was positive and was accepted
by all parties. It reads:
"Op
grond van bovermelde ondersoekresultate het ek geen twyfel nie dat
die betwiste handtekeninge en parawe op Q1.1, Q1.2
en die egte
voorbeelde van handtekeninge en parawe op S1 tot S21 deur een en
dieselfde persoon geskryf was."
I
consequently find that exhibit "A" was duly signed by the
first plaintiff and the first defendant and that first defendant's
denial that she did so was false.
[8]
The matter does not end there. As I see it there are still three
issues that fall for determination:
8.1
Whether
the deed of sale complies with the requirements
contemplated in
section 2(1)
of the
Alienation of Land Act,
68 of 1981
;
8.2
Whether
the agreement was executed in compliance with the
Matrimonial
Property Act, 88 of 1984
; and
8.3
Whether the second and third defendants were aware of the deed of
sale, exhibit "A", between the first plaintiff
and the
first defendant when they bought the farm.
[9]
Section 2(1)
of the
Alienation of Land Act provides
that:
"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."
The
object of this provision, as in the case of its predecessor, is
undoubtedly to eliminate any uncertainty in matters involving
the
alienation of land, which always ranks as one of the most valuable
assets in an estate. This requirement is in the public
interest and
meant to reduce litigation to a minimum. See
Thorpe
v Trittenwein
2007
(2) SA 172
(SCA);
Wilken
v Kohler
1913
AD 135
;
Clement
v Simpson
1971
(3) SA 1
(A) at 7 and
Johnston
v Leal
1980
(3) SA 927
(AD).
[10]
Mr Benade, on behalf of the defendants, argued that exhibit "A"is
not enforceable as it is not in compliance with
s2(1)
of the
Alienation of Land Act because
clause 1 thereof provides that the
purchase price shall be paid as agreed
("soos
ooreengekom")
and
that the date of purchase is indicated as
"op
1 September 2004 en/of soos verder ooreengekom."
He
submitted that this clause was vague as it does not stipulate with
any precision when the purchase price falls due for payment
and in
what form it will be paid.
[11]
In order to examine the validity or otherwise of Mr Benade's
contention the work of
Christie
RH: The Law of Contract in South Africa, 5
th
ed
is
a good point of reference where the following is stated:
"The
price is an essential term of any contract of sale, so a written
contract for sale of land that does not fix the price
or leaves it
for subsequent negotiation is void.
1
But a properly signed written contract of sale of land together with
movable assets for a lump sum price is valid even though
no specific
portion of the price is allocated to the land.
2
The method of payment of the purchase price is also an essential or
atleast a material term, so a written contract that leaves
the
method of payment vague
3
or leaves it over for future negotiation
4
is void and therefore cannot be rectified,
5
but can probably be saved by a tender of cash when the contract does
not provide for payment in cash but by some other method
to be
negotiated.
6
The method of payment may be made sufficiently certain by implied
terms, provided they can be implied from the document itself.
7
Evidence to prove a contemporaneous oral agreement
8
or a subsequent oral variation relating to the method of payment is
not admissible.
9
"
[12]
The Deed of Sale is incorporated in a standard pro forma document
which leaves very little room for error. The parties to
the
agreement are clearly identified. Stefan us Jacobus Slabbert, ID no
540502 5089 083, is described as the purchaser and Louisa
Johanna
Slabbert, ID no 281212 0046 087 is the seller. The property is
properly described (that is not in dispute). In clause
2 the
purchase price is given as the sum of R120 000,00 "payable to
the Seller as follows: soos ooreengekom." The method
of payment
of the purchase price is an essential term of an agreement of the
sale of immovable property. It is correct that the
payment of the
stipulated purchase price "as agreed" ("soos
oooreengekom") is vague. However the method of
payment may be
sufficiently ascertained from the implied terms: provided such terms
can be implied from the document itself.
See
Gandhi
v SMP Properties (Pty) Ltd
1983(1)
SA 1154(D).
[13]
Clause 3, 4 and 5 provide that:
"3.
COST OF TRANSFER.
The
Purchaser shall pay transfer costs in connection with the
registration of transfer of the property, including Transfer Duty,
or Value Added Tax whichever is applicable and the cost of this Deed
of Sale which amounts shall be paid immediately upon request
by the
Purchaser's Conveyancer.
4.
TRANSFER
Transfer
of the property shall be passed by the SellersVPurchaser'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).
5.
POSSESSION
Possession
of the property shall be given to the Purchaser on registration of
transfer or
soos
ooreengekom
from
which date the property shall be at the sole risk, loss or profit of
the Purcahser and from which date the Purchaser shall
be liable for
payment of all Rates and Taxes, Insurance Premuims and other charges
in respect of the property. The Purchaser
shall refund to the Seller
any such monies which may have been paid in advance beyond such
date."
[14]
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 the 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 in instalments.
Clause 1 states that the "offer shall become a final
and
binding sale upon acceptance hereof by the Seller on or before 16
December 2002." This was complied with. The property
was to be
transferred to the purchaser "op 1 September 2004 en/of soos
verder ooreengekom."
I
am in the result satisfied that the parties' agreement is not void
ab
initio.
[15]
A further hurdle that the plaintiffs have to overcome is the
following. They are married in community of property. It is
common
cause that the second plaintiff did not sign the deed of sale as
prescribed by
s2(1)
of the
Alienation of Land Act which
requires
that it be
"...signed
by the parties thereto or by their agents acting on their written
authority."
This
section must be read in conjunction with
s15
of the
Matrimonial
Property Act, 88 of 1984
, which provides that:
“
15
Powers of spouses
Subject
to the provisions of subsections (2), (3) and (7), a spouse in a
marriage in community of property may perform any juristic
act with
regard to the joint estate without the consent of the other spouse.
(2)
Such a spouse shall not without the written consent of the other
spouse-
(a)
alienate, mortgage, burden with a servitude or confer any other real
right in any immovable property forming part of the joint
estate;
(b)
enter into any contract for the alienation, mortgaging, burdening
with a servitude or conferring of any other real right in
immovable
property forming part of the joint estate;
(3)
and (4) (Not relevant)
(5)
The consent required for the performance of the acts contemplated in
paragraphs (a), (b), (f), (g) and (h) of subsection (2)
shall be
given separately in respect of each act and shall be attested by two
competent witnesses."
[16]
Both plaintiffs testified that the second plaintiff did not sign the
deed of sale despite being present when it was signed
by the first
plaintiff and first defendant in December 2002. They knew that they
were enjoined to sign the deed of sale jointly.
They contended that
the second plaintiff had, as in other transactions not related to
the case under discussion, given the first
plaintiff a general power
of attorney to conclude contracts which bound her even though she
did not sign the contract or expressly
declared her consent. They
were further mindful that this power of attorney was signed in 2000,
two years before the conclusion
of the deed of sale in dispute.
[17]
Assuming for the moment that the plaintiffs honestly believed that
the general power of attorney covered their case and was
valid the
obstacle remains that they omitted to plead that fact.
S15(2)
prescribes that in the event that one spouse gives consent that the
other acts as his or her agent such consent must be given
separately
in writing in respect of each act and must be attested to by two
competent witnesses. This was admittedly not done.
The submission
made by plaintiffs' counsel to the effect that because the second
plaintiff was present when the deed of sale
was concluded amounted
to substantial compliance with the prescripts of
s15
is fallacious
because the legal formalities were not adhered to. See
Thorpe
v Trittenwein
2007(2)
SA 172 (SCA) at 176E-178F.
[18]
The intention of the Legislature with
section 15
of the said
Matrimonial Property Act is
, inter alia, to protect a spouse who is
married in community of property not to be divested of property
without his or her consent
or knowledge. In
Amalgamated
Banks of South Africa Bpk v De Goede en n Ander
1997(4)
SA 66 (SCA) at 74B-E the Court stated:
"(D)ie
Wet op Huweliksgoedere handel met huwelike in gemeenskap van goed.
Soos blyk uit art 14 was die oogmerk van die Wetgewer
om gelyke
bevoegdhede met betrekking tot die gemeenskaplike boedel aan gades
getroud binne gemeenskap van goed te verleen. In
aansluiting by
hierdie beginsel van gelyke bevoegdhede van die gades is daar die
bepalings van art 15(1) waarvolgens elke gade
in 'n huwelik in
gemeenskap van goed in beginsel enige regshandeling met betrekking
tot die gemeenskaplike boedel kan verrig.
Hierdie bevoegdheid —
is weliswaar onderhewig aan die bepa lings van subarts (2) en (3).
Volgens daardie subartikels word
die toestemming van die ander gade
vir sekere regshandelinge vereis. Dit is regshandelinge wat moontlik
die ander gade se belang
in die gemeenskaplike boedel kan benadeeL
So bepaal art 15(2) (a) bv dat
!
n
gade nie sonder die skriftelike toestemming van die ander gade
onroerende goed wat deel van die gemeenskaplike boedel uitmaak,
mag
vervreem of beswaar nie. Soos gesien, vereis art 15(2) (h) ook die
ander gade se skriftelike toestemming alvorens 'n gade
horn as borg
verbind. Die vereiste van toestemming geld egter in gelyke mate vir
beide gades, dws sonder om afbreuk te doen aan
die beginsel van
gelyke bevoegdhede."
[19]
In the light thereof the provisions of
section 15
of the
Matrimonial
Property Act are
enacted for the benefit of the spouse married in
community of property such spouse is entitled to waive the benefits
conferred
by it and safe the contract from invalidity. This is
moreso that
section 15
is clearly severable from the other
formalities of
section 2(1)
of the
Alienation of Land Act. See
:
Voqal
NO v Volkersz
1977(1)
SA 537(t) at 548G-551B.
I
therefore come to the conclusion that exhibit A is valid and that
the first respondent was not entitled to sell the property
to second
and third defendants.
[20]
The conclusion that I have reached has material consequences for the
three first defendants. The property is already registered
in the
names of second and third defendants and they may have paid first
defendant the R360 000,00 or portion thereof. It also
has to be
determined whether the transfer of the property into the names of
the second and third defendants was valid. If valid
they will retain
ownership and first defendant will be liable to the plaintiff for
damages suffered. The final order must take
account of all these
permutations. See:
Menqa
and Another v Markram and Others
2008(2)
SA 120 (SCA) at 130B-D.
[21]
The hearing will now have to proceed on the outstanding issues set
out in paragraphs 8 - 13 of the Particulars of Claim.
[22]
The general rule applicable to costs should apply. The plaintiffs
were successful and are entitled to their costs. However,
I wish to
hear further argument on whether second and third defendants must
bear the costs jointly and severally with first defendant.
ORDER
[23]
In the circumstances I make the following order.
1.
The sale agreement between the first plaintiff and the first
defendant is declared to be valid.
2.
The costs issue will stand over for later determination.
B.C. MOCUMIE, J
On
behalf of the 1
st
and
2
nd
plaintiffs:
Adv.
Reinders
Instructed
by:
BLOEMFONTEIN
On
behalf of the 1
st
,
2nd and 3
rd
respondent:
Adv.
Benade
Instructed
by:
BLOEMFONTEIN
1
Coronel
v Kaufman 1920TPD 207.
2
Brink
v Wiid
1968 1 SA 536
(A).
3
Patel
v Adam
1977 2 SA 653
(A).
4
Margate
Estates Ltd v Moore
1943 TPD 54
; Jammine v Lowrie
1958 2 SA 430
(T);
Ruststein v Elandsheuwel Farming (Pty) Ltd
1971 SA 268
(T); Raven
Estates v Miller
1984 1 SA 251
(W).
5
Thathiah
v Khan
1982 3 SA 370
(D); Engelbrecht v Nel
1991 2 SA 549
(W)
552A-D.
6
Dold
v Bester
1984 1 SA 365
(D).
7
Gandhi
v SMP Properties (Pty) Ltd
1983 1 SA 1154
(D).
8
Du
Plessis v Van Deventer
1960 2 SA 544
(A); Kroukamp v Buitendag
1981
1 SA 606
(W).
9
Kuper
v Bolleurs
1913 TPD 334
; Van der Berg v Van Leggelo
1935 TPD 304
;
Neethling v Klopper
1967 4 SA 459
(a) 465B; Sidali v Mpolongwana
1990 4 SA 212
(C).