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[2003] ZASCA 118
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Geue and Another v Van Der Lith and Another (625/02) [2003] ZASCA 118; [2003] 4 All SA 553 (SCA); 2004 (3) SA 333 (SCA) (20 November 2003)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
Case number: 625/02
In
the matter between:
JOHANNES
HEINRICH GEUE FIRST APPELLANT
MONTSERRAT
MARIA GEUE SECOND APPELLANT
and
PIETER BLOMERUS
NOTLING
VAN DER LITH
FIRST RESPONDENT
WANDRAG & HORN
INCORPORATED SECOND RESPONDENT
CORAM: MPATI DP,
STREICHER, BRAND, CONRADIE and HEHER JJA
HEARD: 6 NOVEMBER 2003
DELIVERED: 20 NOVEMBER
2003
Summary
:
Sale of portion of
agricultural land without the consent of the Minister of Agriculture
required by s 3(e)(i) of Act 70 of 1970 â
agreement null and void
despite suspensive condition rendering agreement subject to such
consent being obtained.
_________________________________
JUDGMENT
_________________________________
BRAND JA
/
BRAND JA
:
[1] The owner of a farm
sold an undivided portion of his land without the consent of the
Minister of Agriculture required by s 3(e)(i)
of the Subdivision of
Agricultural Land Act 70 of 1970 ('the Act'), but subject to the
suspensive condition of such consent being
obtained. Is this
agreement rendered void by the provisions of the Act? That is the
question raised by this appeal. Though the
parties have somehow
accumulated a record of some 400 pages in the motion proceedings that
gave rise to the appeal, the salient facts
can be stated quite
simply. The first respondent, ('Van der Lith') is the owner of the
farm Canterbury 254 in the Limpopo Province.
On 19 June 2001 he
entered into a written agreement with the first and second appellants
in terms whereof he sold a portion of Canterbury
to them. For ease of
reference I will refer to the appellants, who are married to each
other in community of property, jointly, as
'Geue'. The farm
Canterbury constituted 'agricultural land' as defined in s 1 of the
Act. At the time of the agreement it was not
divided into portions
nor had the consent of the Minister of Agriculture for the
subdivision or for the sale, as required by s 3
of the Act, been
obtained.
[2] The preamble to the
agreement recorded the common intention of the parties to have
Canterbury subdivided in accordance with the
Act, while the operative
provisions declared the agreement subject to such subdivision. Since
the subdivision was dependent on the
Minister's consent, the
suspensive condition effectively rendered the agreement of sale
subject to such consent being obtained. Upon
signature of the
agreement, Geue became liable to pay part of the purchase price, in
an amount of R200 000, to the attorneys responsible
for the eventual
transfer of the property. Geue duly complied with this obligation.
Pending registration of transfer to Geue, the
attorneys were
instructed to keep this money in trust. Subsequently, Geue brought an
application in the Pretoria High Court for an
order declaring the
agreement null and void by reason of the provisions of s 3(e)(i) of
the Act. They also sought an order against
the transferring
attorneys, who were joined as second respondent, for repayment of
their R200 000. The attorneys did not oppose the
application. Van der
Lith, on the other hand, not only opposed the application by Geue but
also brought a counter-application. He
sought an order,
inter
alia
, declaring that the agreement had become enforceable upon
the fulfilment of the suspensive condition, the consent by the
Minister
of Agriculture for the subdivision of Canterbury having been
obtained in the intervening period. The Court
a quo
(Van der
Walt J) refused the application by Geue and granted Van der Lith's
counter-application, in both instances with costs against
Geue. The
appeal by Geue against these orders is with the leave of this Court.
[3] The critical
provisions of the Act are contained, firstly, in s 3(e)(i) and,
secondly, in the definition of 'sale' in s 1. The
relevant part of s
3(e)(i) provides that:
'[N]o portion of
agricultural land, whether surveyed or not, and whether there is any
building thereon or not, shall be sold or advertised
for sale â¦
unless the Minister [of Agriculture] has consented in writing.'
The definition of 'sale'
was introduced for the first time by the Subdivision of Agricultural
Land Amendment Act 18 of 1981 which
came into operation on 4 March
1981. It reads as follows:
'"sale"
includes a sale subject to a suspensive condition; and "sold"
shall have a corresponding meaning'.
According to the
Afrikaans counterpart of the definition:
'[beteken] verkoop ook 'n
verkoop onderworpe aan 'n opskortende voorwaarde'; en het "verkoop"
wanneer dit as werkwoord gebruik
word, 'n ooreenstemmende betekenis.'
[4] These provisions are
commendably succinct and their meaning is, at least on first
impression, clear. More pertinently, first impressions
seem to
indicate that, in view of the definition, the agreement under
consideration falls squarely within the ambit of the prohibition
contained in s 3(e)(i). After all, the agreement appears to be
nothing other than a sale, subject to a suspensive condition, of a
portion of agricultural land, which was concluded without the
Minister's consent. The same sentiments were obviously held by Van
der Walt J in the Court
a quo
when he said:
'Die statutêre
bepaling van artikel 3(e)(i) van Wet 70 van 1970 is â¦
ondubbelsinnig en duidelik en het oënskynlik betrekking
op die
onderhawige ooreenkoms wat nietigheid van die ooreenkoms tot gevolg
sou hê.'
[5] Nevertheless, the
learned Judge then proceeded to find that, contrary to these first
impressions, the agreement under consideration
does in fact not fall
within the compass of s 3(e)(i). On what grounds did he arrive at
this somewhat surprising conclusion? Essentially,
on the basis that
the Legislature could not have intended to prohibit an agreement
subject to a suspensive condition of the present
kind, because such
prohibition would be so glaringly absurd that it could never have
been contemplated by the Legislature (see e
g
R v Venter
1907
TS 915).
As to why it would be absurd, the learned Judge commenced
his motivation by identifying the essential purpose of the Act as an
attempt
by the Legislature, in the national interest, to prevent the
fragmentation of agricultural land into small uneconomic units. This
proposition, incidentally, is well supported by authority (see e g
Van der Bijl and Others v Louw and Another
1974 (2) SA 493
(C)
499C-E;
Sentraalwes Personeel Ondernemings (Edms) Bpk v Wallis
1978 (3) SA 80
(T) 84E-F; and
Tuckers Land and Development
Corporation (Pty) Ltd v Truter
1984 (2) SA 150
(SWA) 153H-154A).
In order to achieve this purpose, the Legislature curtailed the
common law right of landowners to divide their
agricultural property
by imposing the requirement of the Minister's consent as a
prerequisite for subdivision, quite evidently with
the view that the
Minister should decline any proposed subdivision which would have the
unwanted result of uneconomic fragmentation.
Having regard to all
this, so the Court
a quo
reasoned, an agreement of sale which
is subject to a suspensive condition of the present kind can never be
said to be in conflict
with the object and purpose of the Act. On the
contrary, by rendering the effective part of the agreement subject to
the same requirement
as the one imposed by the Act, i e the
Minister's consent, the suspensive condition is promoting the very
purpose of the Act. In
the light of all this, so the Court
a quo
concluded, any interpretation of s 3(e)(i) which renders an agreement
such as the one under consideration a contravention of the
section,
would be glaringly absurd.
[6] This conclusion
immediately elicits the question why the Legislature found it
necessary to introduce the extended definition of
'sale', by way of
legislative amendment, so as to specifically include an agreement of
sale which is subject to a suspensive condition.
In short, what is
meant by a 'suspensive condition' in the definition? The answer to
this question, given by the Court
a quo,
was that the
'suspensive condition' contemplated by the definition of 'sale' is a
condition which depends on the happening of any
uncertain future
event other than the Minister's consent. The Legislature's reason for
introducing the extended meaning of a 'sale',
so the Court
a quo
explained, is to be understood against the background of a long
line of decisions, including decisions of this Court, that an
agreement
of sale which is subject to a suspensive condition does not
constitute a 'sale' in legal parlance. In the light of these
decisions,
the Court stated, parties to a transaction involving the
alienation of undivided agricultural land could circumvent the
prerequisite
of the Minister's consent, which is required for a
sale,
by making their agreement subject to a suspensive condition of some
kind other than the Minister's consent. This would then take
their
agreement outside the ambit of a '
sale
'. While the
Legislature obviously had good reason to prevent this kind of
avoidance, so the Court concluded, it is impossible to
conceive why
it would have intended to prohibit an agreement made subject to the
suspensive condition of the Minister's consent where
the very object
is to ensure compliance with the requirement of the Act, as opposed
to the avoidance of this requirement.
[7] I agree with the
proposition that the true reason for the introduction of the extended
definition of 'sale' through the legislative
amendment in 1981 needs
to be sought against the background of previous decisions of our
Courts. A good starting point in this investigation
is the decision
of this Court in
Corondimas and Another v Badat
1946 AD 548.
In that case the parties entered into an agreement for the sale of
land which could, in terms of s 5(2) of the statutory enactment
concerned, only be validly concluded under the authority of a permit
issued by the Minister of the Interior. At the time of the agreement,
such a permit had not been granted. The agreement was, however, made
subject to the suspensive condition of the permit being obtained.
Under these circumstances, it was held that s 5(2) of the enactment
did not render the agreement invalid. The
ratio decidendi
appears from the following
dicta
by Watermeyer CJ at 551:
'⦠when a contract of
sale is subject to a true suspensive condition, there exists no
contract of sale unless and until the condition
is fulfilled. In
other words, the prohibited contract (e.g., a contract of sale),
which is declared null and void by sec. 5 (2) of
the Act unless the
Minister consents to it, cannot come into existence unless and until
that condition is fulfilled. Until that moment,
in the case of a sale
subject to a true suspensive condition, such as this is, it is
entirely uncertain whether or not a contract
of sale will come into
existence at some future time. Until that moment there is certainly a
legal relationship, contractual maybe
â¦, existing between the
parties, which may ripen into a contract of sale, but, in the
particular case in which the coming into
existence of a contract of
sale is made, by agreement between the parties, to depend upon
consent to it having been given by the
Minister, that relationship is
not one which is forbidden by the Act or declared by it to be of no
force and effect . ⦠It is not
forbidden, because, unless and until
the Minister gives his consent no contract "whereby one party
acquires or purports to acquire
land" comes into existence and
so soon as he has given his consent, thereby bringing into existence
a contract of that nature,
the condition required by the Act for its
validity (viz., the consent of the Minister) has been fulfilled.'
[8]
Corondimas
was
subjected to severe criticism by academic writers. The notion that a
sale is not a 'sale' simply because it is subject to a suspensive
condition, so they said, constitutes a departure from our common law,
in that the latter regards a sale subject to a suspensive condition
as a 'sale', right from the start (see e g D P de Villiers,
1943
THRHR 13
at 18-19; P J J Olivier 1980
De Jure
238; De Wet and
Yeats,
Kontraktereg en Handelsreg
4ed 135-136; R H Christie,
The Law of Contract
4ed 156-157. See also the minority
judgment of Joubert JA in
Tuckers Land and Development Corporation
(Pty) Ltd v Strydom
1984 (1) SA 1
(A) 19-24 for a comprehensive
discussion of the common law on the subject.) In practice, however,
the
Corondimas
case for many years had little effect. As
explained by Van Heerden JA, writing for the majority in
Tuckers
Land and Development Corporation (Pty) Ltd v Strydom supra
(14G-H),
the import of
Corondimas
only gained real practical
significance in the late 1970's as a result of two unrelated pieces
of legislation. The one was s 3(e)
of the Act under consideration,
i.e. Act 70 of 1970, while the other was s 57A of the Town Planning
and Township Ordinance 25 of
1965 (T) ('the Transvaal Ordinance').
Where s 3(e) of the Act, as we know, prohibited the sale of an
undivided portion of agricultural
land without the Minister's
consent, the Transvaal Ordinance declared the sale of an erf in an
unproclaimed township, to be of no
force and effect. Under the
present Act cases then came before the courts where undivided
portions of agricultural land were sold
without the Minister's
consent, but subject to the suspensive condition of that portion
being incorporated into the area of a municipality,
in which event
the Minister's consent would become unnecessary, since the property
would cease to be 'agricultural land' as defined
in the Act (see e g
Sentraalwes Personeel Ondernemings (Edms) Bpk v Nieuwoudt
1979
(2) SA 537
(C) and
Sentraalwes Personeel Ondernemings (Edms) Bpk v
Wallis supra).
Similar issues arose with reference to the
Transvaal Ordinance where erven in unproclaimed townships were sold
subject to the condition
of the township ultimately being proclaimed
(see e g
Wolmarans and Another v Tuckers Land & Development
Corporation (Pty) Ltd
1979 (1) SA 663
(T) and
Tuckers Land &
Development Corporation (Pty) Ltd v Soja (Pty) Ltd
1979 (3) SA
477
(W). Cf also
Palm Fifteen (Pty) Ltd v Cotton Tail Homes (Pty)
Ltd
1978 (2) SA 872
(A).) In all these cases it was held that
contracts subject to these suspensive conditions were not hit by the
legislative enactments
concerned. The reasoning that formed the basis
of these decisions was essentially that the agreement prohibited by
both enactments
was a
sale
whereas, in accordance with the
decision of this Court in
Corondimas,
an agreement of sale
subject to a suspensive condition cannot, pending fulfilment of the
condition, be regarded as a 'sale'. It only
becomes a sale when the
condition is fulfilled, in which event there is no contravention of
the statutory provisions involved.
[9] In at least two of
the judgments referred to, it was pertinently decided that, in
construing the legislation concerned, it must
be assumed that the
Legislature intended the term 'sale' to be understood in accordance
with the meaning attributed to that term
by the courts in earlier
cases. Any inference that a different meaning was intended, so it was
held, would require a clear indication
by the Legislature to that
effect (See
Sentraalwes Personeel Ondernemings (Edms) Bpk v Wallis
supra
88A and
Sentraalwes Personeel Ondernemings (Edms) Bpk v
Nieuwoudt supra
544H). In this regard specific reference was made
to the well known presumption in the interpretation of statutes that
where words
are used which have received previous judicial
construction the Legislature is presumed, in the absence of any
indication to the
contrary, to have intended those words to bear the
meaning ascribed to them by the courts (see e g
R v Ismail and
another
1958 (1) SA 206
(A) 211).
[10] One of the High
Court decisions that I have referred to in connection with the
provision of the Transvaal Ordinance, namely the
Soja
case,
was challenged on appeal (see
Soja (Pty) Ltd v Tuckers Land and
Development Corporation (Pty) Ltd
1981 (3) SA 314
(A).) In this
Court Trollip JA, writing for the majority, expressed himself as
follows (at 321C-H):
'The Court
a quo
,
relying on
Corondimas
v
Badat
1946 AD 548
and other
decisions referred to in its judgment, held that, because the sale of
the erven embodied in the agreement was suspended
and subject to "the
due proclamation of the said township", it was not hit and
invalidated by s 57A. â¦
I should mention here
that the principle laid down in several cases and affirmed in the
Corondimas
case that an agreement embodying a sale subject to
a suspensive condition is not a contract of sale until the condition
is fulfilled
has been trenchantly criticised by writers. ⦠The
thesis is that the principle is wrong according to our common law,
for the latter
regards such a contract as being one of sale
ab
initio
although it is subject to the suspensive condition. The
author of the article suggests that the legislature should intervene
to correct
the error. However, the correctness of the decision and
reasoning of the
Corondimas
case was not impugned before us;
indeed, it was accepted by counsel for both parties as being correct.
Hence that case is decisive
of the present dispute unless s 57A of
the Ordinance, construed in the context of the other relevant
provisions of the Ordinance,
manifests an intention by the
legislature also to forbid the entering into of suspensive contracts
of sale of erven of the kind in
question here prior to the
declaration of the township as an approved one. Ultimately, in the
hearing of the appeal before us, the
argument for Soja was confined
to this latter, narrow ground.'
In the event, the
majority found that s 57A of the Ordinance did not manifest such an
intention on the part of the Legislature, essentially
for the reasons
that appear from the following statement by Trollip JA (at 324
in
fine â
325A):
'The section was much
more likely intended to refer only to the common or ordinary
contracts of sale. If it were intended to hit also
suspensive
contracts of sale of the kind in question here, that would surely
have been done expressly and explicitly, especially
in view of the
decision in the
Corondimas
case
supra
⦠And in case
of any doubt or uncertainty as to its true meaning on that score (as
is evident from the division of opinion between
us) it should in my
view be construed in its narrower sense as comprehending only the
common or ordinary contracts of sale.'
[11] In the subsequent
case of
Tuckers Land and Development Corporation (Pty) Ltd v
Strydom supra
this Court was asked to reconsider the correctness
of the conclusion reached in the
Soja
case. The facts of the
two cases were, for all intents and purposes, the same. This time,
however, the contention was squarely advanced
that
Corondimas
was wrongly decided in that it was in conflict with the principles of
our common law. From the three judgments delivered in the
Strydom
matter it is apparent that all the members of the Court had some
sympathy with the criticism against
Corondimas.
However, only
Joubert JA (19
et seq
) found it incumbent on him to make the
pertinent finding that
Corondimas
was wrongly decided.
According to the majority judgment (by Van Heerden JA) it was
unnecessary to decide that issue, because the
jurisprudential
correctness or otherwise of the decision in
Corondimas
had no
direct impact on the interpretation of s 57A of the Ordinance. As the
basis for the later view, Van Heerden JA relied on the
principle of
statutory interpretation to which I have already referred, namely,
that, where the Legislature uses words that were
judicially construed
in the past, it is presumed, in the absence of clear indication to
the contrary, to have intended those words
to bear the meaning
ascribed to them by the courts. In the many years that have elapsed
since
Corondimas
, so Van Heerden JA held (at 17F
et seq
),
the courts have interpreted the term 'sale' to exclude a sale subject
to a suspensive condition.
In the light of this, the
Legislature must have intended the term 'sale' to convey that
meaning, and no other, when it again used
this term, without any
qualification, in s 57A of the Transvaal Ordinance. Consequently, Van
Heerden JA held, the technical correctness
or otherwise of
Corondimas
was not the real issue in determining the meaning of s 57A. If
the Legislature wanted the courts to ascribe a meaning to the term
'sale' which differed from how this term was understood in the past,
it would have had to give some clear indication to that effect;
where
necessary, through legislative amendment.
[12] Significantly, in
all the cases referred to the suspensive condition related to the
very requirement prescribed by the legislative
enactments concerned.
In all the cases the eventuality of the contract coming into
operation was made subject either to the Minister's
consent becoming
unnecessary or the proclamation of the township, as the case may be.
Upon reflection, this is not fortuitous. The
reason why the
suspensive condition could not relate to any event other than the one
required by the statutory provision involved
was succinctly
formulated as follows by Watermeyer CJ in
Corondimas
(at
551-552)
'The position which would
arise if the suspensive condition does not relate to the consent of
the Minister and no consent is given,
is not raised in the present
case, but in that event a contract of sale would come into existence
if the condition is fulfilled,
and, if the condition is fulfilled,
the contract which comes into existence must necessarily be an
illegal contract because the Minister
has not consented to it.
Consequently, it would
seem that a sale subject solely to a suspensive condition of any
other sort would necessarily be null and
void.'
(See also Feetham AJA at
559-560.)
The same considerations
were reformulated somewhat differently by Trollip JA in
Soja (Pty)
Ltd v Tuckers Land & Development Corporation (Pty) Ltd supra
322A when he said:
'(I should explain here
that we are only concerned with this limited particular kind of
suspensive condition â the due proclamation
or approval of the
township. If the suspensive condition was of some other kind it
would seem that the agreement would be invalidated
by the prohibition
in s 57A for that condition may be fulfilled and the agreement
perfected before due proclamation â¦).'
[13] The reasoning that
emerges from these statements
seems to provide the answer to
the theory proposed by the Court
a quo
as to why the
Legislature found it necessary to introduce the extended definition
of a sale by way of the 1981 amendment. It will
be remembered that,
according to the theory advanced by the Court
a quo
, the
amendment was necessary to close the loophole of a suspensive
condition being used as a mechanism to avoid the requirement of
the
Minister's consent. Since, in accordance with
Corodimas,
an
agreement subject to a suspensive condition is not a sale, so the
Court
a quo
reasoned, the parties to an agreement of sale of
undivided agricultural land could, but for the amendment, have
circumvented the Minister's
consent by making their agreement subject
to some other suspensive condition unrelated to the Minister's
consent being obtained.
From the
dicta
of Watermeyer CJ and
Trollip JA quoted above, it is plain, however, that any attempt to
avoid the Minister's consent in this manner
would be doomed to
failure. The moment the suspensive condition is fulfilled, it becomes
a 'sale' for which the Minister's consent
is required. Consequently,
such an agreement can never become enforceable without the Minister's
consent. If the purpose of the legislative
amendment was therefore to
prevent this type of 'circumvention', the amendment would be an
exercise in futility. Furthermore, if
I accept, as I do, that the
Legislature is not oblivious to judicial pronouncements in the past,
the Legislature must also be assumed
to have been aware of
explanations such as those given in
Corondimas
and
Soja
as to why the Minister's consent cannot be avoided through the
imposition of a suspensive condition. On this assumption the
Legislature
would therefore have been aware that the concern
attributed to it by the Court
a quo
would be unfounded.
[14] In these
circumstances, the inference is unavoidable that the Legislature's
intention with the introduction of the extended definition
of sale in
1981 could not have been the one ascribed to it by the Court
a
quo
. Deductive reasoning appears to indicate, as the only
remaining alternative, that the extended definition of a 'sale' was
aimed at
the very type of suspensive condition involved in this case,
i e one which renders the agreement of sale subject to the Minister's
consent being obtained. Since this is the only possible inference,
the suggestion by the Court
a quo
that such an inference would
be absurd, is clearly untenable.
[15] In any event, I do
not agree with the Court
a quo
's conclusion of absurdity. The
conclusion is based on the premise that a suspensive condition of the
present kind ensures that the
Legislature 'gets exactly what it
wants'. This presupposes that what the Legislature wants, is only to
prevent an owner of agricultural
land from parting with an undivided
portion of that land without the Minister's consent. I do not think
the supposition is valid.
The purpose of the Act is not only to
prevent alienation of undivided portions of land. The target zone of
the Act is much wider.
This is clear, for example, from s 3(e)(i)
which also prohibits
advertisements
for sale. Since
advertisements obviously precede the actual sale or alienation of an
undivided portion, it is by no means absurd
to infer that the
Legislature intended to prohibit any sale of an undivided portion of
farmland, whether conditional or not, unless
and until the
subdivision has actually been approved by the Minister. Courts are
not entitled, under the guise of absurdity, to avoid
the
Legislature's clear intention because they regard particular
consequences to be harsh or even unwise. Moreover, once the intention
of the Legislature is clearly established, it can be dangerous to
speculate as to why the Legislature would have intended a particular
result (see e g
Shenker v The Master and Another
1936 AD 136
at 143;
Hatch v Koopoomal
1936 AD 190
at 212). In the
circumstances it will serve no real purpose to enter into the realm
of speculation as to why the Legislature would
have intended to
prohibit a sale which is subject to a suspensive condition of the
present kind. Nevertheless, I find the inference
quite plausible that
the Legislature did not want undivided portions of agricultural land
to be sold and occupied by the purchaser
for an indefinite period of
time pending the consent of the Minister, which may then not even be
sought. Another inference which
comes to mind is that the Legislature
wanted to protect unwary or unsuspecting purchasers from binding
themselves into onerous agreements,
subject to an event of
uncertainty that may remain unresolved for an extended period of
time.
[16] For these reasons I
believe that an agreement such as the one under consideration was of
the very kind that the Legislature wished
to include in the
prohibition in s 3(e)(i) of the Act when it specifically extended the
definition of a 'sale' in 1981. Unlike the
Court
a quo,
I am
therefore of the view that the agreement under consideration did
indeed constitute a contravention of s 3(e)(i) of the Act.
[17] The alternative
contention on behalf of Van der Lith was that, even if the agreement
under consideration is held to constitute
a contravention of s
3(e)(i), it does not follow that the agreement is null and void. In
support of this contention it was pointed
out that, unlike, for
example, s 57A of the Transvaal Ordinance, the Act contains no
express declaration to the effect that an agreement
entered into in
conflict with s 3(e)(i) is null and void. It is true, so the argument
went, that a contravention of s 3(e)(i) is
rendered a criminal
offence by s 11(d) of the Act. But the sanction for this offence, so
the argument concluded, is not the invalidity
of the agreement
itself, but the penalties provided for in s 11, i e a fine not
exceeding R1 000 or imprisonment for a maximum
period of two
years.
[18] It is a settled
principle of our law that a contract which contravenes a statutory
provision is not
ipso iure
void, unless, of course, the
statute contains an express statement to that effect. In every case
the question whether the contract
is void or not depends on whether
such an intention is to be imputed to the Legislature. As was
explained by Solomon JA in
Standard Bank v Estate Van Rhyn
1925
AD 266
at 274:
'The contention on behalf
of the respondent is that when the Legislature
penalises an act it impliedly prohibits it, and
that the effect of the prohibition is to render the act null and
void, even if no
declaration of nullity is attached to the law. That,
as a general proposition, may be accepted, but it is not a hard and
fast rule
universally applicable. After all, what we have to get at
is the intention of the Legislature, and if we are satisfied in any
case
that the Legislature did not intend to render the Act invalid,
we
should not be justified in
holding that it was.'
(See also e g
Sutter v
Scheepers
1932 AD 165
at 173-174;
Swart v Smuts
1971 (1)
SA 819
(A) 829C-830C;
Oosthuizen and Another v Standard Credit
Corporation Ltd
[1993] ZASCA 59
;
1993 (3) SA 891
(A) 902H-903F and the authorities
there cited.)
[19] As far as s 3(e) of
the Act is concerned, it has been held in a number of decisions of
the High Court that, on a proper interpretation
of the provisions of
the section, in accordance with the recognised tenets of
construction, the Legislature's intention was that
agreements
prohibited by the section should be visited with invalidity (see e g
Tuckers Land and Development Corporation (Pty) Ltd v Truter
1984
(2) SA 150
(SWA);
Tuckers Land and Development Corporation (Pty)
Ltd v Wasserman
1984 (2) SA 157
(T);
Smith v Tuckers Land and
Development Corporation (Pty) Ltd
1984 (2) SA 166
(T) and
Hamilton-Browning v Dennis Barker Trust
2001 (4) SA 1131
(N)
1135I-J.
[20] Counsel for Van der
Lith accepted that these High Court cases were correctly decided on
their own facts. His argument was, however,
that the agreements
concerned in those cases are distinguishable in that, unlike the
present agreement, they were not specifically
rendered subject to the
Minister's consent being obtained. It is this suspensive condition,
so his argument went, which makes the
whole difference. Because the
suspensive condition seeks to ensure compliance with the very
requirement imposed by s 3(e)(i), he
argued, the agreement can never
be said to be in conflict with the section. This being so, he
submitted, any inference that the Legislature
intended to visit an
agreement such as this with invalidity, is untenable. I do not agree
with this submission. In my view it is
fundamentally flawed. Once it
is accepted that an agreement such as this is prohibited by s
3(e)(i), despite the fact that it is
subject to a suspensive
condition, there is simply no room for an argument that the agreement
is not in conflict with the Legislature's
intention. On the contrary,
since it is accepted that an agreement of this kind is one of those
specifically prohibited by s 3(e)(i),
its recognition as valid and
enforceable would give legal sanction to the very situation which
that section was designed to avoid
(cf
Pottie v Kotze
1954 (3)
SA 719
(A) 726H and
Oosthuizen and Another v Standard Credit
Corporation Ltd supra
904G-H).
[21] For these reasons,
Geue's contention that the agreement between the parties was rendered
null and void by the provisions of s
3(e)(i) of the Act, should
therefore, in my view, be endorsed.
[22] The following order
is made:
a. The appeal is upheld
with costs.
b. The order of the
Court
a quo
is set aside and in its stead the following
order is made:
'1. The agreement of
sale entered into between the first and the second applicants and
the first respondent, dated 19 June
2001, in terms of which an
undivided portion of the farm Canterbury 254 was sold to the
applicants, is declared null and
void.
2. The second respondent
is ordered to pay the amount of R200 000 to the applicants'
attorneys.
3. The first respondent
is ordered to pay the costs of the application.
4. The first
respondent's counter-application is dismissed with costs.'
â¦â¦â¦â¦â¦â¦
F D J BRAND
JUDGE OF APPEAL
Concur
:
MPATI DP
STREICHER JA
CONRADIE JA
HEHER JA