Estate Du Toit v Coronation Syndicate Ltd and Others

• Jurisdiction: South Africa
• Judge: Wessels JA, Curlewis JA, Stratford JA and JER De Villiers AJA
• Judgment Date: 02 April 1929
• Citation: 1929 AD 219
• Hearing Date: 06 March 1929
• Court: Appellate Division

Stratford, J.A.:

To a claim by the plaintiffs (the present appellants) for the sum of £3,700 alleged to be due to them under the terms of a notarial agreement of the 27th December, 1919, the defendants (now respondents) raised two defences, the first being that the agreement did not comply with sec. 29 (1) of Proclamation No. 8 of 1902 (Transvaal) in that the res which was the subject of the agreement was not properly described and/or identified

Stratford, J.A.

therein; the alternative defence was that in terms of clause 7 of the agreement it was agreed that in the event of the sums which were payable to the lessors under the agreement not being paid to the lessors within 14 days after due date the said agreement would thereby lapse and become null and void without further notice.

The Provincial Division upheld the first defence and gave judgment for the defendants with costs. Against that judgment the plaintiffs now appeal.

It was admitted that the agreement in question was, what is commonly known as "a mineral lease," and had to comply with the provisions of sec. 29 (1) of Proclamation No. 8 of 1902 (Transvaal), which provides: "No lease of any mynpacht, claim or right to minerals, and no lease of any land or any stand for a period of not less than ten years or for the natural life of any person mentioned therein, or which is renewable from time to time at the will of the lessee indefinitely, or for periods which together with the first period thereof amount in all to not less than ten years, shall be of any force or effect if executed after the taking effect of this Proclamation unless executed before a notary public, nor shall it be of any force or effect against creditors or any subsequent bona fide purchaser or lessee of the property leased or any portion thereof unless it be registered against the title deeds of such property."

The provision that the lease must be notarially executed necessarily implies that the document must be in writing and thus the decisions quoted in the judgment a quo, upon the meaning of sec. 30, become relevant. The latter section provides that no contract for the sale of fixed property shall be of any force or effect unless the contract is in writing and signed by the parties. So that the present enquiry resolves itself into the question whether the document in this case contains all the terms of the lease with sufficient particularity to comply with the section since the document...