Dryland Farms (Pty) Ltd v Botha and Another

• Jurisdiction: South Africa
• Judge: van Rhyn J
• Judgment Date: 28 March 1969
• Citation: 1969 (2) SA 617 (GW)
• Court: Griqualand-West Local Division

H Van Rhyn, J.:

In this matter plaintiff issued summons against defendants for payment of the sum of R4,000 and interest a tempore morae, being the unpaid balance of the purchase price of a 'farming-business' which plaintiff sold to defendants in terms of a written deed of sale.

In its particulars of claim plaintiff averred that:

'2.

It was a term of the said agreement that first and second defendants would be jointly and severally liable to plaintiff for the total purchase price of R10,006.80 which was to be paid in various instalments, one

van Rhyn J

such instalment of R4,000 being payable on or before 30th November, 1968.

4.

Defendants have failed to pay to plaintiff the said sum of R4,000 due on or before 30th November, 1968:'

In their plea defendants denied responsibility, in the following terms:

'2.

A Ad para. 4.

(a)

It was a condition precedent to liability for the payment of the R4,000 as claimed on the part of defendants under the said agreement that second defendant would be able to sell his property known as 20 and 20 (a) Halkett Road, Kimberley, on or before 30th November, 1968.

(b)

It was a further condition of the said agreement that, should second defendant be unable to sell successfully the property B referred to in para. (a) on or before 30th November, 1968, then he was obliged to pass transfer of the property to the plaintiff in lieu of payment of the sum of R4,000.

(c)

Through no fault on his part, second defendant was unable to sell successfully the said property on or before 30th November, 1968.

(d)

Defendants have tendered transfer of the said property to the plaintiff, and hereby repeat such tender.'

C In its replication plaintiff denied the alleged condition precedent and added:

'(b)

Plaintiff avers that prior to the conclusion of the written deed of sale, first and second defendants represented to plaintiff that second defendant owned two properties known as 20 Halkett Road and 20 (a) Halkett Road, respectively, and that the total value of the said two properties exceeded R4,000, and plaintiff avers that the D condition contained in the written deed of sale was that, if second defendant was not successful in selling the said two properties for the sum of R4,000 on or before 30th November, 1968, he would be obliged to give transfer of the said two properties to plaintiff in lieu of payment of the sum of R4,000.'

Then follow, in the replication, averments that the representations, as E to the ownership and the value of the two erven, were material, that plaintiff believed in the truth thereof and was induced by such representation

'to agree to the inclusion in the written deed of sale of the aforementioned condition . . . which deals only with an alternative method of payment';

namely by transferring the property referred to.

Plaintiff further averred that the representation

F 'was false in that second defendant owned only one property known as 20 Halkett Road, Kimberley (erf 788), the market value of which at all relevant times did not exceed R2,000 and there in fact is no property known as 20 (a) Halkett Road . . .'.

The plaintiff then claimed that in the premises it was not bound by the so called alternative method of payment and the plaintiff was entitled to payment of the amount of R4,000 as claimed in the summons.

G In the alternative plaintiff claimed in its replication that, inasmuch as there was only one property and not two properties of which second defendant was the owner and whilst there was no such property as number 20 (a) Halkett Road in existence, the alternative method of

'payment set out in the deed of sale is not possible of performance'.

In the circumstances plaintiff contended that he was entitled to the H payment of the amount claimed.

According to the evidence it is quite clear that, at the time of the sale, the property (or properties - an aspect with which I shall deal with at a later stage) known as 20 Halkett and 20 (a) Halkett Road, Kimberley, comprised one erf with more than one building. One of the buildings was numbered 20 and another 20 (a). It was common cause between the parties that at no stage did there exist separate erven or stands numbered 20 and 20 (a) respectively and the plaintiff never disputed

van Rhyn J

that in fact the numbers 20 and 20 (a) referred to numbers allocated to separate...