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[2018] ZASCA 24
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Loggenberg and Others v Maree (286/17) [2018] ZASCA 24 (23 March 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 286/17
In
the matter between:
ANTON
LOGGENBERG N O
FIRST APPELLANT
CHARLOTTA
AUGUSTA
LOGGENBERG
N O
SECOND
APPELLANT
LEON
LOGGENBERG N O
THIRD APPELLANT
CHARLOTTA
AUGUSTA
LOGGENBERG
N O
FOURTH APPELLANT
ANTON
GEORG VORSTER N O
FIFTH
APPELLANT
and
NICOLAAS
PETRUS
MAREE
RESPONDENT
Neutral citation:
Loggenberg N O & others v Maree
(286/2017 [2018] ZASCA 24 (23 March
2018)
Coram:
Seriti, Wallis and Swain JJA and Pillay and
Schippers AJJA
Heard:
20 February 2018
Delivered:
23 March 2018
Summary:
Practice – pleadings – exception
– non-compliance with
s 2(1)
of
the
Alienation of Land Act 68 of 1981
– alleged sale of land not
reduced to writing
–
appellants
orally agreed with respondent that he purchase a farm for the benefit
of a trust to be formed and that trust would be
entitled to transfer
of the farm upon reimbursement of respondent’s costs –
trustees seeking to enforce oral agreement
– vagueness –
agreement not a contract of sale – not invalid in terms of
s
2(1)
of Act 68 of 1981 – appellants’ pleadings disclosing
a cause of action and not vague – case remitted for trial.
ORDER
On
appeal from:
Free State Division of the High
Court, Bloemfontein (Daffue J sitting as court of first
instance):
1
The appeal succeeds with costs.
2
The order of the high court is set aside and substituted with the
following:
‘
(a)
The exception to the claim contained in prayers 1 and 2 of the
plaintiffs’ particulars of claim is upheld and those
prayers
are struck out.
(b)
The exception to the claim contained in prayer 3 of the plaintiffs’
particulars of claim is dismissed.
(c)
The exception contained in paragraph 5 of the first defendant’s
notice of exception that the oral agreement
pleaded in paragraph 26
of the plaintiff’s particulars of claim is void for vagueness,
is dismissed.
(d)
Each party shall pay his/her own costs.’
3
The case is remitted to the high court for trial.
JUDGMENT
Schippers
AJA (Seriti, Wallis and Swain JJA and Pillay AJA concurring):
[1]
The Loggenberg family live on a farm called
Weltevreden comprising two pieces of land in Parys in the Free State.
The farm was previously
owned by the Anton Loggenberg Familie Trust
(the Family Trust). It is now in the registered ownership of the
respondent, Mr Nicolaas
Maree, an attorney and formerly a close
friend of Mr Anton Loggenberg. The action from which this appeal
arises is an attempt by
Mr Loggenberg, his wife and son (the
plaintiffs), in their capacities as trustees of the Chacoranja Trust
(the Trust), to compel
Mr Maree to transfer Weltevreden to the Trust.
[2]
Summons was issued in June 2016, accompanied by
detailed particulars of claim setting out the background to the case.
Prior to the
action being instituted Mr Loggenberg and the Trust
obtained an interdict against Mr Maree preventing him from
transferring Weltevreden
to the fifth defendant, Mr Louis Claassen,
who had purchased it for R5.2 million. Mr Claassen played no role in
the present proceedings
and it may well be that he is leaving the
defence to Mr Maree. The response to the particulars of claim was a
notice of exception
delivered on behalf of Mr Maree. He did not plead
over. The exception was argued before Daffue J in the Free State
Division of
the High Court, Bloemfontein, and upheld with costs. The
present appeal is with his leave.
[3]
The pleaded claim in summary was the following.
Mr Loggenberg was insolvent when the Family Trust was created in 1997
to protect
the family’s interests. He continued farming
operations on the farm through two close corporations. In 2007 the
debts of
the Family Trust and one of the close corporations were
consolidated and re-financed by a loan to the Family Trust of some
R2.3
million by clients of Maree & Bernard Attorneys. In 2010
when the close corporation was liquidated it was discovered that the
Family Trust was indebted to it in an amount of R442 480. The
liquidators obtained judgment for this amount, a writ of execution
was issued and Mr Maree bought the farm at a sale in execution on 12
October 2011 in the circumstances described below.
[4]
After taking advice from a Pretoria attorney, Mr
Maree and Mr Loggenberg entered into a contract for the benefit of a
third party
with the following oral, alternatively implied, terms
(the oral agreement). Mr Maree would purchase Weltevreden at the sale
in
execution for the benefit of a new trust to be created to protect
the interests of Mr Loggenberg and his family. Although Mr Maree
would become the registered owner of the farm, Mr Loggenberg and his
family would continue to reside on Weltevreden and Mr Loggenberg
would continue his farming activities. Once the new trust was
established, Weltevreden would be transferred to it against payment
to Mr Maree of the costs he had incurred in acquiring and obtaining
registration of the farm in his name, and repayment of the
loan to
the clients of Maree & Bernard Attorneys. Mr Maree would arrange
the finance for this through Maree & Bernard Beleggers.
It was
alleged that he would engage in reasonable and bona fide negotiations
with the Trust for the transfer of the farm, and with
the investors
for the necessary finance. The newly established trust would in any
event be entitled to transfer of Weltevreden
from Mr Maree against
payment of the amounts mentioned. Finally it was said to be an
implied or tacit term that he would not encumber
or sell Weltevreden
without entering into negotiations with the Trust concerning
implementation of the oral agreement.
[5]
In accordance with the oral agreement, Mr Maree
bought Weltevreden for R500 000 on behalf of the trust to be
created. The Chacoranja
Trust was established on 15 May 2012. Mr
Loggenberg, his wife and Mr Maree were the appointed trustees,
authorised by the Master
on 6 June 2012 to act in that capacity in
terms of s 6(1) of the Trust Property Control Act 57 of 1988. Mr
Maree resigned as trustee
on 26 May 2016. It is alleged that the
Trust accepted the benefit conferred by the oral agreement and that
at the beginning of
2013, Mr Maree was informed that the Trust
anticipated shortly thereafter being in a position to pay the amounts
that it was obliged
to pay in order to procure transfer of
Weltevreden in its favour. However, it was alleged that Mr Maree
breached his obligations
under the oral agreement by selling
Weltevreden to Mr Claassen for R5.2 million.
[6]
The plaintiffs sought the following relief in the
particulars of claim:
‘
1.
An order directing the first defendant to negotiate bona fide and
reasonably with the first to third plaintiffs, with the aim
of
concluding an agreement for the acquisition and transfer of the
Weltevreden farms with the trustees of the Trust.
2.
An order in terms of which the first defendant is directed, on behalf
of the investors of Maree & Bernard Attorneys, to negotiate
bona
fide and reasonably with the trustees of the Trust, in order to
conclude an agreement for the financing of the Trust for the
acquisition and transfer of the Weltevreden farms.
3.
In the alternative to prayers 1 and 2, an order in terms of which the
first defendant is ordered to:
3.1
transfer ownership of the Weltevreden farms to the trustees of the
Trust at some time, upon fulfilment of the tender and payment
of the
monies referred to in paragraph 42.2 of the plaintiffs’
particulars of claim; and
3.2
take all necessary steps, sign documents and give instructions in
order to transfer the Weltevreden farms at some time to the
trustees
of the Trust.’
[1]
(My
translation.)
[7]
Mr Maree took exception to the particulars of
claim on the basis that they did not disclose a cause of action. He
raised three arguments
in support of the exception. First, he
contended that the agreement alleged was an alienation of land in the
form of a sale, and
invalid because it was not incorporated in a deed
of alienation as required by s 2 of the Alienation of Land Act 68 of
1981 (the
Act). Second, he alleged that the agreement was void for
vagueness, both because it embodied an agreement to agree on matters
such
as the terms of the transfer and financing arrangements, and
because in the absence of agreement on such matters the agreement was
incurably vague. Third, and in anticipation of an argument being
raised that the common law should be developed to render agreements
to agree enforceable in law, he argued that this was not an
appropriate development of the common law.
[8]
The relief sought in the exception was an order
upholding it and either dismissing the plaintiffs’ claims with
costs, or striking
out the particulars of claim with costs.
Alternatively, it asked that prayers 1 and 2 be dismissed or struck
out.
[9]
The court a quo held that the particulars of
claim did not sustain a cause of action. On any reasonable
construction thereof the
Trust was required to pay Mr Maree the costs
incurred in purchasing the farm and related costs, together with the
outstanding loan
of the Family Trust. This, the court said, was
nothing other than the ultimate sale of Weltevreden to the trustees
of the Trust.
It concluded that the oral agreement was void for want
of compliance with s 2(1) of the Act. The court also upheld the
exception
on the ground of vagueness. It found that the oral
agreement as pleaded was so vague that the particulars of claim would
not be
saved by evidence and was excipiable upon every interpretation
that the pleading could reasonably bear. Finally, the court a quo
held that the so-called agreement to negotiate so as to conclude a
further agreement, was void. In this regard the court found
that
there could not be any suggestion of bona fide negotiations for the
conclusion of an oral agreement aimed at the alienation
of immovable
property. This was in direct conflict with the relevant statutory
requirements.
[10]
The exception was upheld with costs, followed by
the following confusing and vague order:
‘
2.
All paragraphs in the plaintiffs’ particulars of claim that
relate to the relief sought in prayers 1 & 2, including
the
relevant prayers, are struck out with costs, including the costs of
two counsel.’
[2]
(My translation.)
The
doctrine of vagueness, based on the rule of law, is a foundational
value of our constitutional democracy. It requires laws to
be written
in a clear manner with reasonable certainty but not perfect
lucidity.
[3]
Court orders must
comply with this standard: vague provisions in a court order violate
the rule of law.
[4]
[11]
Neither counsel was able to say what paragraph 2
of the order meant or which portions of the particulars of claim
survived. In addition,
the plaintiffs were granted leave to amend the
particulars of claim and the question arises: which paragraphs
required amendment?
Nor was it clear that the order correctly
reflected the intention of the learned judge. Although prayer 3 of
the order was not
expressly struck out, the judgment itself made it
clear that the prayer could not be sustained both on the ground that
it embodied
an agreement that did not comply with s 2 of the Act and
because the agreement was in any event too vague to be enforceable.
Finally
the argument in this court was rendered more confusing by a
concession by counsel for the plaintiffs that he would no longer
pursue
the claim in terms of prayers 1 and 2. This led his opponent
to submit that the appeal had effectively been abandoned.
[12]
It is clear from the judgment that the court
found that the agreement to transfer Weltevreden to the Trust
constituted a contract
of sale which was invalid because it did not
comply with s 2 of the Act and was in any event unenforceable. Those
findings, as
a matter of law, applied equally to the relief sought in
paragraph 3 of the particulars of claim and were the findings against
which leave to appeal was sought and granted. Indeed, counsel for the
respondent submitted that prayer 3, which was based on the
validity
of the oral agreement to transfer Weltevreden (without further
negotiation), was perhaps erroneously not struck out. So,
irrespective of whether the prayer remains, the terms of the judgment
are inconsistent with it being legally sustainable. The submission
that there is no longer an appeal before this Court save for the
question of costs, since the plaintiffs have abandoned the relief
sought in terms of prayers 1 and 2 of the particulars of claim, is
incorrect.
[13]
This brings me to the question whether the oral
agreement fell foul of s 2(1) of the Act, which reads:
‘
Formalities
in respect of alienation of land
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.’
[14]
The Act
defines ‘alienate’ as meaning ‘sale, exchange or
donation’. It was not suggested that this transaction
was
either an exchange or a donation, which left only a sale. This being
an exception, the excipient had to persuade the court
a quo that upon
every construction which the particulars of claim could reasonably
bear, no cause of action was disclosed.
[5]
Put differently, Mr Maree had to show that upon every reasonable
interpretation of the oral agreement, it contemplated the sale
of
Weltevreden to the Trust.
[15]
A contract
of sale is a consensual agreement by which one of the contracting
parties (the seller) binds itself to the other (the
buyer) to
exchange a thing for a definite sum of money (the price) which the
buyer promises to pay to the seller.
[6]
The essentials of the contract are agreement upon the
merx
,
the price and the obligation of the seller to deliver the
merx
to the buyer.
[7]
[16]
The relationship between Mr Loggenberg and Mr
Maree cannot be described as being one of buyer and seller. Neither
can the relationship
between the Trust and Mr Maree be so described.
Instead, the oral agreement as pleaded is based solely on the
relationship between
Mr Loggenberg and Mr Maree. This is buttressed
by the following allegations in the particulars of claim. The
Loggenberg family
was in financial difficulty. Mr Maree agreed to
purchase Weltevreden on behalf of a trust to be formed and register
the farm in
his name until the trust could acquire ownership of it.
The Loggenberg family would continue to live and farm on Weltevreden.
After
its establishment, the trust would be entitled to transfer of
Weltevreden upon reimbursement of Mr Maree’s costs incurred
in
acquiring the farm (there is no hint of profit or payment for his
services) and payment of the amount owed to the clients of
Maree &
Bernard Attorneys. Mr Maree would not be entitled to encumber or sell
the farm without negotiations concerning implementation
of the oral
agreement.
[17]
Further, it was alleged that at the sale in
execution Mr Maree and Mr Loggenberg informed members of the public
that Mr Maree was
buying Weltevreden on behalf of the Loggenberg
family and they were asked not to push up the bids. In accordance
with the oral
agreement, Mr Maree bought Weltevreden for R500 000
whereas its market value was R1 million. The Trust was established in
2012 and Mr Maree (unlike a seller) and Mr Loggenberg became
trustees. Pursuant to a meeting in 2013 at which Mr Loggenberg
informed
Mr Maree that the Trust would be in a position to repay the
purchase price and costs which Mr Maree had incurred in acquiring
Weltevreden,
on 27 March 2013 and 8 April 2013 amounts, each of R1
million, were paid into the trust account of Bernard & Maree
Attorneys
for inter alia the acquisition of Weltevreden by the Trust.
[18]
These
allegations in the particulars of claim must for present purposes be
assumed to be correct, unless they are clearly false
or cannot
possibly be proved.
[8]
Reasonably interpreted, the allegations are capable of sustaining a
cause of action that Mr Maree bought Weltevreden on behalf
of the
Trust and took transfer thereof into his own name, with an
undertaking to transfer the farm to the Trust when called upon
to do
so, upon reimbursement of his costs and payment of the loan by the
Family Trust to Maree & Bernard Attorneys. So interpreted,
the
oral agreement does not constitute a sale of Weltevreden to the
Trust. This is not new. More than a century ago in
White
v Collins
,
[9]
Ward J explained the nature of such a claim as follows:
‘
If
A buys a property on behalf of B from C and takes transfer into his
own name with a promise to B to transfer it to him when called
upon,
B has an
actio in
personam
to compel
A to transfer the property to him.’
[19]
This
statement by Ward J was approved in a minority judgment by Greenberg
JA in
Du
Plessis v Nel
,
[10]
that a promise by A to hold freehold property registered in her name
in trust for B is a contract to deliver such property on demand,
and
is not a contract of sale of fixed property as contemplated in the
Transvaal Transfer Duty Proclamation 8 of 1902.
[11]
[20]
This Court
endorsed Greenberg JA’s view in
Dadabhay
v Dadabhay & another
.
[12]
The appellant and the respondent entered into an oral agreement in
terms of which the respondent agreed to buy an erf from the
Community
Development Board on behalf of and as nominee for the appellant, but
refused to transfer it when called upon to do so.
A defence based on
s 1(1) of the General Law Amendment Act 68 of 1957 was dismissed.
[13]
This Court held that the oral agreement was neither a contract of
sale nor a cession in respect of an interest in land; and that
the
word ‘nominee’ may well have been used in the relevant
oral agreement to denote that the respondent would act as
a trustee
in buying the property and thus would thereafter sign all documents,
when called upon by the appellant to do so, in order
that it could be
registered in her name.
[14]
[21]
Counsel for the respondent submitted that unlike
Dadabhay
, the
acquisition of Weltevreden by the Trust against payment of the price
to be determined and financed, was nothing other than
a sale; that
the Trust did not even exist at the time of the stipulation in its
favour; and that all it allegedly acquired on acceptance
of the
stipulation was the right to purchase the farm at a price to be
determined and financed.
[22]
The
submission is unsound. A typical
stipulatio
alteri
or contract for the benefit of a third party, is a contract concluded
between A and B for the benefit of a third party C, who by
accepting
the benefit becomes a party to that contract so that it is A and C
who are bound to each other.
[15]
Such a contract has been recognised as enforceable in relation to a
company not yet formed.
[16]
So, nothing turns on the fact that the Trust was not in existence
when the oral agreement was concluded. It appears that the agreement
was a fairly typical
stipulatio
alteri
.
Once the Trust was established, by accepting the benefit of the oral
agreement, it could obtain the right Mr Loggenberg contracted
for, ie
the transfer of Weltevreden. And since the oral agreement was capable
of being construed other than as a sale, it would
not be prohibited
by s 2(1) of the Act. Of course, it is an entirely different matter
whether the oral agreement can be proved
and whether the Trust indeed
accepted the benefit of that agreement. But these are matters for
trial, not exception.
[23]
What
remains is the exception that the contract is void for vagueness. It
is a settled principle that the question whether a purported
contract
is void for vagueness should not lightly be decided on exception.
[17]
In this regard the dictum of Harms JA in
Namibian
Minerals Corporation v Benguela Concessions
[18]
is particularly apposite:
‘
Once
a court is called upon to determine whether an agreement is fatally
vague or not, it must have regard to a number of factual
and policy
considerations. These include the parties’ initial desire to
have entered into a binding legal relationship; that
many contracts
(such as sale, lease or partnership) are governed by legally implied
terms and do not require much by way of agreement
to be binding (cf
Pezzuto v Dreyer and Others
[1992] ZASCA 46
;
1992 (3) SA 379
(A); that many agreements contain tacit terms (such
as those relating to reasonableness); that language is inherently
flexible
and should be approached sensibly and fairly; that contracts
are not concluded on the supposition that there will be litigation;
and that the court should strive to uphold
–
and
not destroy
–
bargains.'
[24]
Given the
nature of the oral agreement and that language used in a contract
should be approached sensibly and fairly, I do not think
that the
court a quo at the exception stage was able to say with certainty or
the requisite degree of confidence, that the agreement
was not an
enforceable contract on account of vagueness and that the plaintiffs
had no case. Instead, there remained the possibility
that evidence
might resolve uncertainties in the oral agreement, such as the amount
that Mr Maree was authorised to bid for the
farm; the identity of the
investors and the terms of the proposed finance for the acquisition
of the farm by the Trust; the effect
on the oral agreement if the
Trust did not obtain the necessary finance; and Mr Maree’s
reimbursement costs.
[19]
[25]
The remaining question regarding vagueness –
the alleged mutually destructive allegations in the particulars of
claim, namely
that there would be negotiations for the transfer of
Weltevreden, but that the Trust would in any event be entitled to
transfer
of the farm – is no longer in issue since the
plaintiffs have abandoned paragraphs 1 and 2 of the relief sought. It
follows
that the court a quo’s finding that the oral agreement
as pleaded was so vague that no evidence could resolve the
uncertainties,
cannot stand.
[26]
In their
written submissions and in oral argument the plaintiffs indicated
that they no longer intend to proceed with paragraphs
1 and 2 of the
relief sought and their claim that the common law should be developed
so as to permit enforceability of an agreement
to enter into bona
fide negotiations. In my view, the plaintiffs’ approach was
sensible: whether the common law should be
developed is not a matter
that should be decided by way of exception.
[20]
In any event this Court has recently held that a development of the
common law such as was suggested by the plaintiffs is not justified
on constitutional grounds and the Constitutional Court refused leave
to appeal against that judgment.
[21]
Therefore the exception to paragraphs 1 and 2 of the relief sought
was properly upheld and fairness dictates that each party should
pay
its own costs in respect of the proceedings in the high court. The
plaintiffs have been substantially successful on appeal
and there is
no reason why costs should not follow the result.
[27]
The following order is made:
1
The appeal succeeds with costs.
2
The order of the high court is set aside and substituted with the
following:
‘
(a)
The exception to the claim contained in prayers 1 and 2 of the
plaintiffs’ particulars of claim is upheld and those
prayers
are struck out.
(b)
The exception to the claim contained in prayer 3 of the plaintiffs’
particulars of claim is dismissed.
(c)
The exception contained in paragraph 5 of the first defendant’s
notice of exception that the oral agreement
pleaded in paragraph 26
of the plaintiff’s particulars of claim is void for vagueness,
is dismissed.
(d)
Each party shall pay his/her own costs.’
3
The case is remitted to the high court for trial.
_______________________
A Schippers
Acting Judge of Appeal
APPEARANCES
For
Appellant: B Knoetze SC
Instructed by:
Symington & De Kok,
Bloemfontein
For
Respondent: FH Terblanche SC (with him AJ
Wessels and H Struwig)
Instructed by:
Strydom & Bredenkamp
Inc, Pretoria
EG Cooper Majiedt Inc,
Bloemfontein
[1]
The order sought reads:
‘
1.
‘n Bevel in terme waarvan die eerste verweerder gelas word om
bona fide
en redelikerwys met die eerste tot derde eisers te
onderhandel met die oogmerk om ‘n ooreenkoms ter verkryging
van oordrag
en transport van die Weltevreden plase met die trustees
van die Trust te sluit.
2.
‘n Bevel in terme waarvan die eerste verweerder gelas word om
namens die beleggers van Maree & Bernard Prokureurs
bona
fide
en redelikerwys met die trustees van die Trust te
onderhandel ten einde ‘n ooreenkoms ter finansiering van die
Trust ter
verkryging van oordrag en transport van die Weltevreden
plase te sluit.
3.
In die alternatief tot smeekbedes 1 en 2, ‘n bevel in terme
waarvan die eerste verweerder gelas word om:
3.1
die Weltevreden plase in eiendom aan die trustees indertyd van die
Trust oor te dra teen nakoming van die tender en die betaling
van
die gelde waarna in paragraaf 42.2 van die eisers se besonderhede
van vordering verwys is; en
3.2
alle nodige stappe te doen, dokumente te teken en opdragte te
verleen ten einde die Weltevreden plase aan die trustees indertyd
van die Trust oor te dra.’
[2]
Paragraph 2
of the
order of
the court a quo reads:
‘
Alle
paragrawe in eisers se besonderhede van vordering wat verband hou
met die regshulp aangevra in bedes 1 & 2, insluitende
die
betrokke bedes, word deurgehaal met koste, insluitend die koste van
twee advokate.’
[3]
Affordable Medicines Trust
& others v Minister of Health & others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) para 108;
National
Credit Regulator v Opperman & others
[2012] ZACC
29
;
2013 (2) SA 1
(CC) para 46
[4]
Minister
of
Water
& Environmental Affairs v Kloof Conservancy
[2015] ZASCA 177
;
[2016] 1 All SA 676
(SCA) para 14.
[5]
Lewis v Oneanate (Pty) Ltd
& another
[1992] ZASCA 174
;
1992 (4) SA
811
(A) at 817F;
Ocean Echo
Properties 327 CC v Old Mutual Life Assurance Company (South Africa)
Ltd
[2018] ZASCA 9
para 9.
[6]
A A Roberts
Wessels
Law
of Contract in SA
2 ed (1951) para 4419;
Commissioner
of Customs and Excise v Randles Brothers & Hudson Ltd
1941
AD 369
at 400.
[7]
Commissioner for Inland
Revenue v Wandrag Asbestos (Pty) Ltd
[1994] ZASCA 148
;
1995 (2) SA 197
(A) at 214J.
[8]
Natal Fresh Produce
Growers’ Association & others v Agroserve (Pty) Ltd &
others
1990 (4) SA 749
(N)
at 754J-755B.
[9]
White v
Collins
1914 WLD 35
at 37.
[10]
Du
Plessis v Nel
1952 (1) SA 513
(A) at
526H-527B.
[11]
Section 30 of the former Transfer Duty Proclamation read:
‘
No
contract of sale of fixed property shall be of any force or effect
unless it be in writing and signed by the parties thereto
or the
agent's duly authorised in writing.’
[12]
Dadabhay v Dadabhay &
another
1981 (3) SA 1039
(A) at
1048H-1049A;
1049G-1050A.
[13]
Section 1(1) of the General Law Amendment Act 68 of 1957 reads:
‘
No
contract of sale or cession in respect of land or any interest in
land (other than a lease, mynpacht or mining claim or stand)
shall
be of any force or effect if concluded after the commencement of
this section unless it is reduced to writing and signed
by the
parties thereto or by their agents, acting on their written
authority.’
[14]
This
judgment was f
ollowed
in
Du Plooy & another v
Du Plooy & others
[2012] 4 All SA 239
(SCA);
[2012] ZASCA 135
paras 32 and 33.
[15]
Crookes N O & another v
Watson & others
1956
(1) SA 277
(A) at 291E-F;
Joel
Melamed and Hurwitz v Cleveland Estates (Pty) Ltd; Joel Melamed and
Hurwitz v Vorner Investments (Pty) Ltd
[1984] ZASCA 4
;
1984 (3) SA 155
(A) at 172A-E.
[16]
McCullogh v Fernwood Estate
Limited
1920 AD 204
at
205-206.
[17]
Murray & Roberts
Construction Ltd v Finat Properties (Pty) Ltd
1991 (1) SA 508
(A) at 514F.
[18]
Namibian Minerals
Corporation Ltd v Benguela Concessions Ltd
[1996] ZASCA 140
;
1997
(2) SA 548
(A) at 561G-I.
[19]
Burroughs
Machines Ltd v Chenille Corporation of SA (Pty) Ltd
1964
(1) SA 669
(W) at 676F-H, approved in
Murray
& Roberts
fn 17 at 514F.
[20]
H v
Fetal Assessment Centre
[2014] ZACC 34
;
2015 (2) SA 193
(CC) para 26.
[21]
Roazar CC v The Falls
Supermarket
[2017] ZASCA
166
paras 16-24.