THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 1300/2021
In the matter between:
CHAVONNES BADENHORST ST CLAIR COOPER N O FIRST APPELLANT
SUMIYA ABDOOL GAFAAF KHAMMISA N O SECOND APPELLANT
and
CURRO HEIGHTS PROPERTIES (PTY) LTD RESPONDENT
Neutral Citation: Cooper N O and Another v Curro Heights Properties (Pty ) Ltd
(1300/2021) [2023] ZASCA 66 (16 May 2023)
Coram: ZONDI, MOCUMIE, MOTHLE, MEYER and MOLEFE JJA
Heard: 2 March 2023
Delivered: 16 May 2023
Summary: Sale of land – Validity of – formalities – Alienation of Land Act 68 of 1981
– section 2(1) – requires the whole contract , all its material terms , to be reduced to
writing and signed - material terms not confined to the essentialia of a contract of sale,
viz, the parties, merx and pretium – whether a term constitutes a material term is
determined with reference to its effect on the rights and obligat ions of the parties –
subdivision in this instance constitutes material term – failure to reduce such material
term to writing signed by or on behalf of parties results in non-compliance with s 2(1)
- effect of – contract null and void - Contract – Validity of - lack of consensus between
the parties in respect of the merx – effect of – contract null and void.
2
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ORDER
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On appeal from: Western Cape Division of the High Court, Cape Town (Goliath DJP
sitting as a court of first instance):
1 The appeal is upheld with costs.
2 The order of the high court is set aside and in its place is substituted the
following:
‘(a) The written sale of land agreement concluded between the parties on 14
November 2016 and its addendum concluded on 18 April 2017, are declared
void ab initio due to non-compliance with section 2(1) of the Alienation of Land
Act 68 of 1981 and for want of consensus between them in respect of the
merx.
(b) The respondent is to pay the applicants’ costs.’
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JUDGMENT
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Meyer JA (Zondi, Mocumie, Mothle and Molefe JJA concurring):
[1] This appeal concerns the crisp issue whether a written sale of land agreement
is null and void ab initio due to non-compliance with s 2(1) of the Alienation of Land
Act 68 of 1981 (the Act) and for want of consensus between the parties in respect of
the merx.
[2] The appeal is against the whole judgment and order of the Western Cape
Division of the High Court, Cape Town (the high court) delivered on 18 August 2021.
The first and second appellants, Mr Chavonnes Badenhorst St Clair Cooper and Ms
Sumiya Abdool Gafaaf Khammisa N N O, are the joint liquidators (the liquidators) of
Nomic 151 (Pty) Ltd (in liquidation) (Nomic) . T he respondent is Curro Heights
Properties (Pty) Ltd (Curro), its sole director being Mr Rhett Molyneux (Mr Molyneux).
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[3] The liquidators and Curro concluded a written sale of land agreement in terms
whereof the liquidators sold certain land that fell into the estate of Nomic to Curro as
part of the winding up of Nomic’s affairs. The liquidators sought certain declaratory
relief from the high court, inter alia a declarator that the agreement is invalid for non-
compliance with s 2(1) of the Act or for want of consensus in respect of the merx (the
subject-matter of the sale) . Having found that the agreement complied with s 2(1) of
the Act, that there was such consensus and that it was not validly cancelled, Goliath
DJP dismissed the application and did not make any order as to costs. The appeal is
with leave of the high court.
[4] The land in question is unimproved erven described as erven 19548, 19563,
19564 and 19565 in the district of Mossel Bay, Western Cape (the erven). Erf 19565
is a private ‘ring road’ that provides access to various erven, including other subdivided
erven that do not fall within the estate of Nomic. Curro sough t to purchase the land
with the aim of subdividing and developing them into residential erven.
[5] On 8 April 2016, a written sale of land agreement was concluded between the
liquidators and Curro (its name at that time was K2 015420767/07 (Southern Africa)
(Pty) Ltd), represented by Mr Molyneux, in terms whereof the liquidators sold the land
to Curro at a purchase price of R5.5 million plus value added tax (VAT). The merx was
recorded to be ’Road Portion of Erf 195 55 Mossel Bay with extent of approximately
4 816 m²’ (the ring road), ‘Erf 1948 Mossel Bay being 3 600m²’, ‘Erf 19563 being 1.99
Ha’ and ‘Erf 19564 Mossel Bay being 7378 m²’. After the written sale of land agreement
had been concluded, i t was realised that the measurement of the ring road was
incorrectly recorded . The parties accordingly concluded a written addendum to the
written sale of land agreement wherein the measurement of the ring road was rectified
to ‘9045 Square Metres’. However, the parties did not realise that the written sale of
land agreement also erroneously recorded the ring road’s e rf number as ‘195 55’
instead of ‘19565’. As a result of Curro’s failure to make payment of the deposit , the
written sale of land agreement was cancelled (the cancelled agreement).
[6] On 14 November 2016, the liquidators and Curro, represented by Mr Molyneux,
concluded yet another written sale of land agreement in terms whereof the same land
was sold to Curro for a purchase price of R4.5 million plus VAT (the agreement) . It
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contemplated for the liquidators to receive expeditious payment of the whole purchase
price and the passing of ownership of the land to Curro. A deposit of 10% of the
purchase consideration, R450 000, was payable within three days after signature of
the agreement and the balance of the purchase price was payable against registration
of transfer of the land into the name of Curro. Transfer was to be given ‘as soon as
possible but not after 16 JANUARY 2017 ’. The same erroneous recordal of the ring
road’s erf number crept into the agreement, although this time its measurement was
correctly recorded. The parties are ad idem that their common intention was to refer
to erf ‘19565’ and not to ‘195 55’. By Curro’s own admission, the liquidators ‘never
intended to sell Erf 19555 and [Curro] also did not intend to purchase this erf. The
[liquidators] intended to sell Erf 19565 which is the property that fell into the estate of
Nomic that had to be wound up’.
[7] This makes perfect sense because ‘[l]iquidation proceedings are strictly
proceedings to constitute a concursus creditorum. The liquidation process continues
until the company's affairs have been finally wound up, and the company is dissolved’.1
Nomic had been placed in liquidation as far back as 26 June 2012 and the liquidators
were appointed in March 2013 . Yet, by November 2016 the liquidators had not yet
fulfilled their statutory obligations to finally wind up its affairs for it to be dissolved.
[8] The difficulties with the sale of the land to Curro commenced soon after the
conclusion of the agreement. Curro failed to pay the R450 000 deposit within three
days of the signature date. After payment of the deposit had been demanded by the
liquidators on 12 December 2016 , and before any steps had been taken by them to
cancel the agreement, Curro remedied its breach and paid the deposit. However, the
passing of ownership to Curro could no longer occur on or before 16 January 2017 as
agreed to in clause 4 of the agreement. The liquidators were willing to salvage the sale
to enable them to finally wind up the affairs of Nomic and cause its demise. The parties,
therefore, concluded a written addendum to the agreement on 18 April 2017 (the
addendum) in terms whereof clause 4 of the agreement was amended to read that
‘[t]ransfer shall be given and taken as soon as possible’.
1 Lutchman N O and Others v African Global Holdings (Pty) Ltd [2022] ZASCA 66; [2022] 3 All SA 35
(SCA); 2022 (4) SA 529 (SCA) para 29.
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[9] It was only during the process of preparing the transfer documents that the
erroneous recordal of the ring road’s erf number was detected. At the behest of the
liquidators, a second addendum was prepared to correct the erroneous recordal of the
ring road’s erf number. It was signed by the liquidators on 3 May 2017 and sent by
their attorneys to Mr Molyneux for his signature on behalf of Curro. Mr Molyneux
responded by email on 5 June 2017, stating essentially that due to investigations that
he did on the preced ing Friday (some months after the agreement had been
concluded) he realised that erf 19565 extend s into the adjacent Nurture Park
development and that, that part of the erf would also vest in Curro if effect is given to
the sale. He accordingly suggested that that part of the ring road be excluded from the
sale and that erf 19565 be subdivided . He asked how the ‘impasse’ should be
‘rectified’.
[10] The liquidators were still willing to attempt to salvage the sale in order to cause
the demise of Nomic. Negotiations ensued between the parties in respect of the
subdivision of the ring road with a view of ensuring that effect could be given to the
sale. The negotiations might or might not have resulted in an informal arrangement or
even an oral agreement, but no formal written agreement or addendum was ever
concluded and signed by or on behalf of the parties.
[11] No subdivision materialised during the next few years. On 1 November 2019,
almost three years after the agreement had been concluded, the liquidators, through
their attorneys, in writing made it clear to Curro that they would no longer entertain any
further indulgences in respect of the subdivision of the ring road and they demanded
signature of the necessary documents to allow ownership of the land to pass to Curro.
Curro did not accede to the liquidators’ dem and. By letter dated 10 March 2020 , the
liquidators called upon Curro to remedy its breach within 21 days. This was not done
and by email dated 31 August 2020 , they advised Curro that they had cancelled the
agreement insofar as it had ever been valid. On 1 0 September 2020, the liquidators
initiated the application under consideration to enable them to lawfully sell the land to
a third-party buyer and finally wind up Nomic’s affairs for it to be dissolved.
[12] This brings me to the declarator that the agreement is void for want of
consensus in respect of the merx at the time of its conclusion. One of the essentialia
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of any contract of sale is the merx. On the one hand, t he liquidators intended to sell
the whole of erf 19565, which is the property that fell into the estate of Nomic. On the
other, Mr Molyneux on behalf of Curro stated in the answering affidavit that Curro
never intended to purchase that part of erf 19565 that extends into Nurture Park. On
the probabilities, however, it would appear that at the time of the conclusion of the
agreement both the liquidators and Curro intended to sell and buy the whole of erf
19565. It was only after the conclusion of the agreement – due to the investigations
that Mr Molyneux undertook – that Curro, on Friday 2 June 2020, realised that the part
of erf 19565 (the ring road) that extends into Nurture Park would also vest in Curro if
effect is given to the agreement.
[13] But, it must be acknowledged that ‘[m]otion proceedings, unless concerned with
interim relief, are all about the resolution of legal issues based on common cause facts’
and, ‘[u]nless the circumstances are special they cannot be used to resolve factual
issues because they are not designed to determ ine probabilities’.2 Even if I were to
accept that Curro’s version is improbable in certain respects, the matter is to be
decided without the benefit of oral evidence . I, therefore, have to accept the facts
alleged in Curro’s answering affidavit ‘unless th ey constituted bald or uncreditworthy
denials or were palpably implausible, far -fetched or so clearly untenable that they
could safely be rejected on the papers’. A ‘finding to that effect occurs infrequently
because courts are always alive to the potential for evidence and cross -examination
to alter its view of the facts and the plausibility of the evidence’.3 The test in that regard
is ‘a stringent one not easily satisfied’.4 The rationale for its stringency is this:
‘As everybody who has anything to do with the law well knows, the path of the law is strewn
with examples of open and shut cases which, somehow, were not; of unanswerable charges
which, in the event, were completely answered; of inexplicable conduct which was fully
explained; of fixed and unalterable determinations that, by discussion, suffered a change.’5
2 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; [2009] 2 All SA 243 (SCA); 2009
(2) SA 277 (SCA) para 26.
3 Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd [2016] ZASCA 11 9;
[2016] 4 All SA 311 (SCA); 2017 (2) SA 1 (SCA) para 36.
4 Mathewson and Another v Van Niekerk and Others [2012] ZASCA 12 para 7.
5 The well-known dictum of Megarry J in John v Rees and Others; Martin and Another v Davis and
Others; Rees and Another v John [1970] 1 Ch 345; [1969] 2 All ER 274.
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[14] That stringent test has not been satisfied in this instance. I conclude, therefore,
that the agreement is null and void ab initio for want of consensus in respect of the
merx at the time of its conclusion. A plea of rectification thus does not avail Curro. This
is so, because rectification of a written agreement is a remedy available to parties in
instances where an agreement reduced to writing, through a mistake common to the
parties, does not reflect the true intention of the contracting parties. ‘It is not the
agreement between the parties which … is rectified. The Court has no power to alter
it. To do so would be to amend their common intention and in effect to devise a fresh
pact for them. That is their exclusive prerogative. All that the Court ever touches is the
document’.6 The onus is on a party seeking rectification to show, on the balance of
probabilities, that the written agreement does not correctly express what the parties
had intended to set out in the agreement.7
[15] Next, the declarator that the agreement is of no force or effect for non-
compliance with s 2(1) of the Act. The section reads thus:
‘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 result of non -compliance with s 2(1) , is ‘that the agreement concerned is of no
force or effect. This means that it is void ab initio and cannot confer a right of action’.8
[16] Section 2(1) requires the whole contract of sale – its material terms – to be
reduced to writing signed by or on behalf of the parties. The material terms of the
contract are not confined to those prescribing the essentialia of a contract of sale,
namely the parties to the contract, the merx and the pretium. 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, a nd also the force and effect of
other material terms of the contract, to be ascertained without recourse to evidence of
6 Spiller and Others v Lawrence [1976] 1 All SA 553 (N); 1976 (1) SA 307 (N) at 310E-F.
7 Soil Fumigation Services Lowveld CC v Chemfit Technical Products (Pty) Ltd [2004] 2 All SA 366
(SCA); 2004 (6) SA 29 (SCA) para 21.
8 Johnston v Leal 1980 (3) SA 927 (A) (Johnston) at 939A. This Court in Rockbreakers and Parts (Pty)
Ltd v Rolag Property Trading (Pty) Ltd [2009] ZASCA 102; 2010 (2) SA 400 (SCA); [2010] 1 All SA 291
(SCA) (Rockbreakers) para 6 held that Johnston ‘summed up the legal effect of the predecessor to s
2(1), which was materially in the same terms’.
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an oral consensus between the parties.9 Whether a term constitutes a material term is
determined with reference to its effect on the rights and obligations of the parties. 10 It
has been held that subdivision materially affects the rights and obligations of the
parties to a contract in a given case.11
[17] This is such a case, inter alia, for the following reasons: First, there is no
express reference to a subdivision in the agreement or the addendum and the
possibility of a subdivision of the ring road was only raised for the first time by Mr
Molyneux on 5 June 2017 , some six months after the agreement had been signed .
Even if the negotiations that ensued thereafter resulted in a subsequent informal
agreement having been reached regarding subdivision of the ring road, then, of
course, there would be non-compliance with s 2(1) in that the whole contract is not in
writing and signed by or on behalf of the parties.12 The consequence of this is that the
contract of sale is null and void.
[18] Second, the agreement and the addendum bestowed rights on the liquidators
to receive expeditious payment of the whole purchase price and the passing of
ownership of the land to Curro. Third, which of the parties would have carried the
obligation to cause the subdivision to be effected and the liability for the costs thereof?
Fourth, what would have been the rights and obligations of the parties in the event of
the subdivision not having been approved?
[19] Fifth, if that part of the ring road that runs into Nurture Park was subdivided from
the remainder of the ring road, ownership of which would have passed to Curro, then
ownership of the part that runs into Nurture Park would have remained in the estate of
Nomic, unless the liquidators would have been able to alienate it , which possibility is
speculative and would otherwise not have been the case . The whole of the land,
including the ring road - erf 19565 - fell into the estate of Nomic and had to be sold as
part of the process of winding up its affairs for its demise to result.
9 Johnstone fn 9 above at 937G-938C.
10 Rockbreakers fn 9 above para 8.
11 Ibid.
12 Johnston fn 9 above at 939G-H.
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[20] I conclude , therefore, that the agreement and the addendum concluded
between the parties are null and void ab initio also due to non-compliance with s 2(1)
of the Alienation of Land Act.
[21] In the result the following order is made:
1 The appeal is upheld with costs.
2 The order of the high court is set aside and in its place is substituted the
following:
‘(a) The written sale of land agreement concluded between the parties on 1 4
November 2016 and its addendum concluded on 18 April 2017, are declared
void ab initio due to non-compliance with section 2(1) of the Alienation of Land
Act 68 of 1981 and for want of consensus between them in respect of the merx.
(b) The respondent is to pay the applicants’ costs.’
________________
P A MEYER
JUDGE OF APPEAL
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Appearances
For the applicant: L N Wessels
Instructed by: Sandenbergh Nel Haggard, Bellville
Spangenberg Zietsman Bloem Inc, Bloemfontein
For the respondent: R Molyneux in person, with leave of the high court