Gatri and 'n Ander v Melk en 'n Ander (5363/2006) [2007] ZAFSHC 35 (26 April 2007)

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[2007] ZAFSHC 35
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Gatri and 'n Ander v Melk en 'n Ander (5363/2006) [2007] ZAFSHC 35 (26 April 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : 5363/2006
In
the case between:-
SAMUEL GATRI
First
Applicant
MATSELANE
ELISA GATRI
Second
Applicant
and
BADUMELLENG BRADY
MELK
First
Respondent
MOTLAGOMANG
MAGGIE MELK
Second
Respondent
JUDGMENT
BY:
C.J.
MUSI J
_____________________________________________________
HEARD
ON:
29
MARCH 2007
_____________________________________________________
DELIVERED
ON:
26
APRIL 2007
_____________________________________________________
[1] The applicants seek
the following order:
“
1. That the Respondents be ordered
and directed, to sign any and all necessary transfer documents, in
order to effect transfer of
Erf 3410, Ashbury Extension 6, district
Bloemfontein, Free State Province.”
2. In the event, of the Respondents
failing to sign the aforesaid documents, that within 10 days after
the granting of this order,
that the Registrar of this Honourable
Court, be directed and authorized to sign any and all documents
necessary, to effect transfer
of the said erf.
3. That
the Respondents be ordered to pay the costs of this application.”
[2] Before dealing with
the merits I pause to record that the respondents applied for
condonation for the late filing of their opposing
affidavits. They
filed it two days late. They also tendered the cost of the
application. The application for condonation was not
opposed.
Condonation was granted with costs.
[3] It
is common cause that the respondents are the owners of the property
mentioned in paragraph one above.
[4] The
applicants aver that they entered into a written agreement to buy the
said property from the respondents. The applicants
attached the
purported agreement to their application. The respondents denied
that they were party to the agreement. They specifically
deny that
they signed the agreement.
[5] Ms
Eloff, on behalf of the respondents, also challenged the validity and
enforceability of the said agreement on various grounds.
Mr.
Grobler, on behalf of the applicants, argued that the contract is
valid and enforceable.
[6] Although
the respondents deny signing the document I will for the purposes of
this judgment accept, without deciding, that they
indeed signed the
document. Having disposed of that issue the main issue that falls to
be decided is whether the agreement is of
any force or effect.
[7]
Section
2(1)
of the
Alienation of Land Act, 68 of 1981
, reads as follows:
“
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 purpose of the
legislature – as is clear from the authorities – is to achieve
certainty in transactions of considerable value
and importance in
regard to terms and conditions agreed upon which are often intricate
and complex. This reduces the risk of perjury,
fraud and unnecessary
litigation.
WILKEN
v KOHLER
1913 AD 135
;
CLEMENTS
v SIMPSON
1971 (3) SA 1
(A) at p.7;
RAVEN
ESTATES V MILLER
1984 (1) SA 251
(W) at p. 255 D – E.
[8] In
JOHNSTON
v LEAL
1980 (3) SA 927
(AD) the Court dealt with one of the predecessors of
Act 68 of 1981
viz
section 1(1) of Act 71 of 1969 which is in essence the same as the
current section. In
JOHNSTON
v LEAL
,
supra
at 939 Corbett JA, as he then was, said:
“
One of the consequences of the
application of s 1 (1) is that where the parties have entered into a
written contract for the sale
of land, but it appears ex facie the
writing that a material term has been left inchoate, as, for example,
where the writing expressly
states that the term is to be agreed upon
later by the parties, the contract by itself is of no force or effect
and cannot sustain
a cause of action.”
[9] Ms Eloff argued that
the agreement
in
casu
is
inchoate because the identity of the parties is not clear or they are
not identifiable, the
merx
is not properly described and the mode of payment is undetermined.
Mr. Grobler condeded that the description of the
merx
and the identity of the parties were not properly dealt with in the
document. He, however, submitted that the parties are identifiable
and that there can be no uncertainty in relation to the
merx
because Erf 3410 sufficiently describes the property. He argued that
extrinsic evidence is in any event admissible to show that
the
parties are identifiable. Likewise, so he argued, extrinsic evidence
is admissible to show that the parties agreed on a particular
mode of
payment, being a mortgage bond.
[10] In
JOHNSTON
v LEAL
,
supra
at 938 B – C it was said that:
“
Generally speaking these terms -
and especially the
essentialia
- must be set forth with sufficient accuracy and particularity to
enable the identity of the parties, the amount of the purchase
price
and the identity of the subject-matter of the contract, as also the
force and effect of other material terms of the contract,
to be
ascertained without recourse to evidence of an oral consensus between
the parties ...”
Recourse to oral
consensus and extrinsic evidence can be taken in certain limited
circumstances. In
JOHNSTON
v LEAL
,
supra
the Court considered one of the limited circumstances in which
recourse to evidence could be taken. The general rule is that a
party
to a contract which has been integrated into a single and
complete written memorial may not contradict, add, amend or modify
the
contract by reference to extrinsic evidence and in that way
redefine the terms of the contract. See
JOHNSTON
v LEAL
,
supra
at 943 B – C. In
JOHNSTON
v LEAL
,
supra
it was decided that evidence could be adduced to explain an overt
lack of completeness in the document and to determine what has
been
integrated with a view to deciding upon the validity of the document
as it stands. See p. 943 F. The extrinsic evidence as
to why
particular clauses on a printed contract were left open was allowed.
It was not allowed to amend, redefine or modify the
contract but to
ascertain why certain clauses were left blank. Mr. Grobler’s
contention that extrinsic evidence is admissible
to prove material
terms of the contract is patently wrong.
[11] In my view this
whole matter can and should be decided on one point only. I hasten
to deal with that point. Clause 2 of the
contract reads as follows:
“2. PURCHASE
PRICE
The purchase price is the sum of R350
000-00 (exclusive* inclusive* of the Value Added Tax) Payable by the
Purchaser to the Seller
as follows:
THE
PURCHASER WILL INFORM THE SELLER ON THE EIGHTH DAY FROM THE DATE OF
THE SIGNATURE ABOUT FURTHER TRANSACTION ...”
Clause 12 which deals
with mortgage bond reads as follows:
“12. MORTGAGE
BOND
This Agreement is subject to the
suspensive condition that a loan of R ............................
secured by a Mortgage to be
registered over the property is
obtained by the Purchaser or the Seller on his behalf on the normal
terms and conditions of any
Registered Commercial Bank within a
period of fourteen (14) days from the 1
st
date of signature hereof or such extended period as the parties may
agree in writing.”
[12] The mode of payment
of the purchase price is not stipulated in the agreement. Christie
RH :
The
Law of Contract in South Africa
5
th
Ed at 122 stats that:
“
The method of payment of the price
is also an essential or at least a material term, so a written
contract that leaves the method
of payment vague or leaves it over
for further negotiation is void and therefore cannot be rectified,
...”
This view is in sync with
a long line of cases. In
DU
PLESSIS v VAN DEVENTER
1960 (2) SA 544
(A) at 551 A it was said:
“
Volgens art. 1 (1) van Wet 68 van
1957 is skrif by 'n verkoopkontrak ten opsigte van grond 'n
geldigheidsvereiste, en volgens
Kuper
v Bolleurs
,
1913 T.P.D.
334
, en
van der Berg v
Leggelo
,
1935 T.P.D. 304
,
val 'n voorsiening betreffende die wyse van betaling van die koopprys
onder die bedinge wat op skrif gestel moet word.”
See also
PATEL
v ADAM
1977 (2) SA 653
(AD) at 666 A. In
ENGELBRECHT
v NEL
1991 (2) SA 549
(W) at 552 A it was held that:
“
The method of payment is a material
term of the agreement which cannot be postponed for later
negotiation. Hence the agreement would
be void for uncertainty.”
[13] If one has regard to
clause 2 of the agreement in this matter it is difficult if not
impossible to discern what the parties contemplated.
It is not clear
what the further transaction is that the purchaser will inform the
seller about. It is not clear whether the purchase
price will be
paid in cash or by other means. It is not clear when the purchase
price will be paid. The matter is further compounded
by the fact
that clause 12 which deals with mortgage bond is blank. Evidence to
show that the agreed mode of payment was cash is
inadmissible. See
Christie RH,
supra
at 122
and the cases cited therein. In any event
“
When, on the facts, the parties
cannot be said to have contemplated payment in cash, their failure
properly to reduce to writing the
mode of payment which they did in
fact contemplate will render the contract invalid”
per Page J in
DOLD
v BESTER
1984 (1) SA 365
(D & CLD) at 369 D – E.
[14] The method of
payment was clearly left to be negotiated at a future date. It is
clear that the essential particulars in respect
of method of payment
was not yet agreed upon and was left open for future agreement
between the parties. This is, in my view, for
the reasons stated
above, not a valid and enforceable contract. That said I do not deem
it necessary to deal with Ms Eloff’s other
interesting and relevant
arguments in relation to the invalidity of the agreement. The
application ought to be dismissed.
[15] There
is no reason why the costs should not follow the event. The
respondents were successful and are entitled to their costs.
[16]
Consequently
I make the following order:
The
application is dismissed with costs.
___________
C.J. MUSI, J
On behalf of the
applicants: Adv. S. Grobler
Instructed
by:
Azar
& Havenga Attorneys
BLOEMFONTEIN
On
behalf of the respondents: Adv. Z. Eloff
Instructed by:
Matshidiso
Attorneys
PRETORIA
c/o
Saffy & Associates
BLOEMFONTEIN
/sp