Berman v Teiman

• Jurisdiction: South Africa
• Judge: Nicholas J
• Judgment Date: 14 June 1973
• Hearing Date: 13 June 1973
• Court: Witwatersrand Local Division

Nicholas, J.:

In November 1972 a contract for the sale of the applicant's property situate at 28 Central Street, Houghton, F Johannesburg, was signed by the applicant as seller, and by the respondent as purchaser. Clause 1 of the contract provided as follows:

"1.

The purchase price shall be the sum of R80 000 payable as to R2 000 in cash immediately upon acceptance thereof by the seller/s which amount shall be paid to Messrs. I. Kuper & Co. (Pty.) Ltd. to be held by them pending the due fulfilment of all my/our obligations herein, and the due registration of transfer of the G property into my/our name/s whereupon the said sum shall be paid to the seller/s less agents' commission, and the balance amounting to the sum of R78 000 shall be secured by a bankers' or building society's guarantee/s or other guarantee/s approved by the seller/s payable to the seller/s or his/its nominee, free of exchange against registration of the property into my/our name/s to be furnished within 150 days of acceptance of this offer to purchase."

Notwithstanding the expiry in about the middle of April 1973 of H the said period of 150 days, the respondent has not furnished the applicant with a guarantee. The applicant now applies for an order compelling the respondent to do so. The respondent's answer is that the contract of sale is null and void by reason of the provisions of sec. 1 (1) of the Formalities in respect of Contracts of Sale of Land Act, 71 of 1969, contending that the description of the purchaser in the contract is such that it is not possible to determine therefrom whom the purchaser is. The identity of the parties to a contract for the sale of fixed property is of course as much an essential

Nicholas J

term of the contract as is the subject-matter and the price, and if the respondent's contention is well-founded, it will follow that the contract is void and that the applicant is not entitled to the relief which she seeks.

The only description in the contract of the purchaser is that contained in the respondent's subscription thereto. This reads as follows:

A "Thus done and signed by the purchaser/s at Johannesburg on this 16th day of November 1972. Purchased in my personal capacity and/or as nominee for a company to be formed.
	Purchaser: I. Teiman.; married out of community of property and assisted by my husband as far as need be.
	N. Teiman.; Purchaser's husband."

The words I have underlined, which were handwritten on the printed document, gave rise to two difficulties.

The first concerns the word "nominee". In its ordinary meaning C this word connotes a person who is nominated or appointed. It cannot bear that meaning in its present context since a person cannot be nominated by a company yet to be formed. Mr. Zar, who appears on behalf of the respondents...