Dibley v Furter

• Jurisdiction: South Africa
• Judge: van Zyl J
• Judgment Date: 05 February 1951
• Citation: 1951 (4) SA 73 (C)
• Court: Cape Provincial Division

C Van Zyl J:

Plaintiff in this matter is suing the defendant for the return of the purchase price of a certain farm and movables which he D bought from the defendant; also for damages and he has tendered the return of the things bought against repayment of the purchase price Plaintiff in his declaration has set out his case as follows (paras 3 - 11):

3. On the 15th day of May, 1948, plaintiff purchased from defendant the farm 'Shangri-La', Bellville, in extent 1.8753 morgen, more fully described as

E 'Certain piece of redeemed quitrent land situate in the Cape Division, being Portion 6 of Lot K of Stikland'

in terms of a written contract of sale hereto annexed marked 'A'.

4. The said property has been transferred to plaintiff by defendant and plaintiff has paid defendant the purchase price set out in Annexure 'A'.

5. At the time of the said sale, there was situate on the said property F a graveyard containing about 80 graves, which said graves were spread over approximately one acre of the property. Burials had taken place in the said graveyard as recently as the year 1944.

6. At the time of the said sale there was situate on the said property a dwelling house, outbuildings and a well which was the sole source of water supply for the said property. A portion of the graveyard aforesaid G is in very close proximity to the said dwelling and the said well is so situate in relation to the said graveyard as to expose the water in the well to the danger of pollution. It was within the contemplation of plaintiff and defendant at the time of the sale that plaintiff had purchased the property for use as a residence and for the purpose of developing it agriculturally.

7. Defendant was aware of the existence of the said graveyard at the time of the said sale but prior thereto all traces of the said graveyard H had been obliterated by defendant and plaintiff was unaware and could not have been aware of the existence of the said graveyard and only became aware thereof after he had taken transfer and paid the purchase price aforesaid. Plaintiff is, owing to the work of obliteration undertaken by defendant as aforesaid, presently ignorant of the exact location of the individual graves.

8. The said graveyard constituted a latent defect in the said property the existence of which defect defendant fraudently concealed from plaintiff and which seriously impaired the utility of the property for the purpose for which it was bought.

Van Zyl J

9. Alternatively, and only in the event of the Court holding that the said graveyard did not constitute a latent defect in the said property, plaintiff says:

(a)

that the existence of the said graveyard was a material fact known to defendant at the time of the sale, which defendant was, in the A premises, under a duty to disclose to plaintiff prior to the sale;

(b)

with the object of inducing plaintiff to enter into the said sale upon the terms set out in Annexure 'A' hereto defendant fraudulently concealed from plaintiff the existence of the said graveyard and plaintiff was thereby induced to enter into the said sale upon the said terms.

(c)

In the alternative to para. (b);

B defendant negligently concealed or failed to disclose the existence of the said graveyard to plaintiff whereby plaintiff was induced to enter the said contract.

(d)

In the alternative to paras. (b) and (c) above,

defendant in breach of his duty aforesaid failed to disclose the existence of the said graveyard.

(e)

C Had plaintiff been aware of the existence of the said graveyard he would not have purchased the said property.

10. Plaintiff has incurred the following costs and expenses in and about the transfer to him, the taking possession of and the maintainance of D the said property which costs and expenses have, by reason of the above premises, been rendered useless and of no value to him:

Costs of transfer	£180	13	0
Estimated costs of cancellation of bond and estimate of interest in lieu of notice	41	4	0
Estimated costs of moving into said property	50	0	0
Necessary and useful expenses incurred in and E upon the buildings of the said property	81	0	0

11. Plaintiff hereby tenders to return to defendant the said property and the blinds referred to in Annexure 'A' and tenders to pay to defendant:

(a)

the sum of £12 being the value of the cow referred to in Annexure 'A' which cow, through no negligence on plaintiff's part has died; and

(b)

the sum of £45 being the value of the said stove referred to in F Annexure 'A', which stove plaintiff sold before he became aware of the existence of the said graveyard and which he is unable to re-acquire.

In the premises and against the said tenders plaintiff is in law entitled to claim rescission of the contract of sale, Annexure 'A' hereto and repayment of the purchase price of £5,250 and damages in the sum of £352 17s.

To this declaration defendant has pleaded in the following terms:

G 2. (a) Verweerder erken dat daar 'n woonhuis, buitegeboue en puts (die enigste waterbron) op gemelde eiendom was ten tye van die aangang van gemelde kontrak; en dat die bedoeling was dat eiser daarop sou woon en boer.

(b) Verweerder erken ook dat daar 'n paar mense (die juiste getal is eiser onbekend, maar ongeveer 10) meer as vyf jaar gelede op 'n deel van die grond weg van die huis en die puts begrawe was en dat die verteerde stoflike oorskot nog daar was toe eiser gekoop het.

H 3. (a) Verweerder het reeds lank voor gemelde verkoping die oppervlakte waar sodanige stoflike oorskot is, gelyk gemaak, en was ten tye van gemelde verkoping bewus van die feit dat die stoflike oorskot van gemelde mense in die grond was.

(b) Verweerder erken dat hy nie gemelde feit aan eiser gemeld het nie, en dat eiser ook nie enige tekens daarvan aan die oppervlakte kon bespeur nie.

4. Verweerder ontken dat die gemelde feit 'n wesentlike feit was, ontken dat hy dit van eiser weerhou het met die doel om hom te oorreed om gemelde kontrak aan te gaan, en ontken dat hy hom aan enige bedrog skuldig gemaak het. Verweerder ontken in besonder dat eiser nie die eiendom sou gekoop

Van Zyl J

het as hy van gemelde feit bewus was, en sê dat eiser dit in alle geval sou gekoop het.

6. Verweerder ontken dat daar omtrent 80 graftes is of was en ontken in alle geval dat hy te enige tyd van so 'n getal bewus was; maar sê in alle geval dat al sou daar 80 graftes gewees het, slegs die verteerde stoflike oorskot aanwesig was ten tye van gemelde verkoop, en ontken dus A dat die water in die puts besoedel kon word of dat dit 'n gebrek was, of dat die nuttigheid van die eiendom vir die doel waarvoor dit gekoop is daardeur verminder is.

7. Verweerder dra geen kennis van die besonderhede in para. 10 beweer nie, ontken dit en vra dat die eiser bewys.

8. Behalwe soos hierin erken word paragrawe 5 tot 9 van die deklarasie B ontken.

9. In die alternatief, al sou die bewerings in paragrawe 5 tot 9 juis wees, pleit verweerder dat eiser enige reg van opsegging van gemelde kontrak verloor of verbeur het, deurdat:

(a)

Eiser reeds in Oktober 1948 bewus was dat daar graftes op gemelde C eiendom was toe gemelde koopkontrak aangegaan is, en eers op 16 Februarie 1949 gemelde kontrak opgesê het.

(b)

Vanaf Oktober 1948 tot 16 Februarie 1949 het eiser voortgegaan om al die voordele onder gemelde kontrak te geniet d.i. hy het eiendomsreg ten opsigte van die gemelde grond, huis, koeie en stoof geniet en uitgeoefen.

(c)

Tussen Oktober 1948 en 16 Februarie 1949 het eiser die stoof verkoop.

(d)

D Op 16 Februarie 1949 kon eiser weens sy handelswyse en onredelike versuim nie restitutio in integrum eis nie, deurdat

(a)

Die stoof nie deur eiser aan verweerder teruggegee kon word nie,

(b)

Die koei dood is,

(c)

Die waarde van die eiendom aansienlik gedaal het vanaf Oktober 1948 tot 16 Februarie 1949.

E 10. Die waarde van die stoof, koei en blindings was £55, £10 en £30 respektiewelik.

11. Paragrawe 11 en 12 word ontken.

The declaration is set out in its final form as it appears after certain amendments were allowed during the trial. As a result of the amendments F granted certain further causes of action were added and defendant has taken exception to them on the ground that they disclose no cause of action. They are the causes of action which appear in para. 9 (c), (d), (e).

G [The learned Judge then proceeded to analyse the evidence and found that portion of the farm Shangri-La had been used as a graveyard up to and including 1944.]

I come now to consider whether, after the middle of 1945 when the defendant bought Shangri-La, the graveyard was still visible and if so to what extent. I shall at the same time consider the extent of the defendant's knowledge of the existence of this graveyard.

H [The learned Judge after analysing the evidence found that in the middle of 1945 there were a large number of graves visible and recognisable as graves and that at the time the defendant sold the property to the plaintiff he knew that there were at least 25 graves on it. The learned Judge also found in fact that there were over 80 people buried there. He then proceeded.]

Van Zyl J

On 15th of May, 1948, defendant sold Shangri-La together with a stove, blinds and a cow to plaintiff who is a bee farmer and who bought the property in order to carry on his bee farming on it. During June A plaintiff took possession of the farm and later in the month took transfer of the property. I am satisfied that the plaintiff did not know when he bought the farm that it had been used as a graveyard. When plaintiff bought the farm the garage and the servants' quarters were not completed; and he proceeded to have them completed. While these building B operations were going on the mealies that had been...